File verified petition for adoption before family court

Published : Thursday, November 24, 2011 00:00 Article Views : 533 Written by : Persida Acosta Dear PAO, I have an 11-year-old son with a former relationship who was duly acknowledged by his father. I am now married to a French national and we agreed to adopt my son. I am still a Filipino and the biological father of my son already gave his consent to the adoption. Can we jointly adopt my son? How long will the adoption take? RG Dear RG, Adoption is defined as a juridical act which creates between two persons a relationship similar to that which results from legitimate paternity and filiation (Commentaries and Jurisprudence on the Civil Code of the Philippines, Volume One, page 554, citing 4 Valverde 473). We highly approve of your decision to adopt your illegitimate child and thereby raising his status to that of a legitimate child. Your husbands intention of joining you in the adoption and making your child as if he were his own is likewise commendable. The adoption of your illegitimate son will be governed by Republic Act No. 8552 or the Domestic Adoption Act of 1998 and the Rule on Adoption as provided in A.M. No. 02-6-02-SC, dated August 02, 2002). Your husband is not obligated to join you in the petition since you are adopting your own illegitimate child. However, it shall be necessary that he has signified his consent to the adoption (Section 4, Rule on Adoption). Nevertheless, this does not mean that he cannot join you in filing the petition for adoption. As a rule, an alien may only adopt if he possesses all the qualifications before a Filipino may adopt and the following additional qualifications: (a) his country must have diplomatic relations with the Philippines, (b) he must be living in the Philippines for at least three continuous years prior to the filing of the petition for adoption and maintains such residence until the adoption decree is entered, (c) he has been certified by his diplomatic or consular office or any appropriate government agency to have the legal capacity to adopt in his country, and (d) his government allows the adoptee to enter his country as his adopted child. However, since your husband will be adopting your illegitimate son, the requirements pertaining to his residency and certification may be waived (Section 4, id). To jointly adopt your illegitimate son, you and your French husband should file a verified Petition for Adoption before the family court of the place where you currently reside (Section 6, id.). In addition to the consent of the biological father of your son, you also need to get the written consent of your son as he is already eleven years old and the written consents of your other illegitimate, legitimate or adopted children aged ten years old or over, should there be any (Section 9, RA 8552). If the petition for adoption is granted, your son shall be considered as you and your husbands legitimate child and as such, will be entitled to all the rights and obligations provided by law to the other children born to you without discrimination of any kind (Section 16,

id.). Finally, please be reminded that this opinion is solely based on your narration of facts and our appreciation of the same. The opinion may vary if other facts are added or elaborated. We hope that we were able to address your concern. Editors note: Dear PAO is a daily column of the Public Attorneys Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net.

Foreigner husband needs an immigrant visa

Published : Friday, November 25, 2011 00:00 Article Views : 427 Written by : PERSIDA ACOSTA Dear PAO, I am married to a foreigner who works in a foreign country while my children and I stay in the Philippines. My husband plan to stay in the Philippines. What would be an appropriate visa for him? He is not a businessman and has no investments here? It is just being together like a regular family. Felipa Dear Felipa, It is good to hear that your husband is planning to stay for good in the Philippines. Insofar as his permanent stay in the Philippines is concerned, he will need an immigrant visa. He can accomplish this in two ways, one is through the quota immigrant visa and the other one is through the non-quota immigrant visa. The quota immigrant visa is given to qualified applicants and is limited to fifty (50) individuals per year. On the other hand, non-quota immigrant visa is given to any qualified applicant without regard to the said numerical limit. Commonwealth Act No. 613 or the Philippine Immigration Act of 1945 provides as follows: Sec. 13. Under the conditions set forth in this Act, there may be admitted into the Philippines immigrants, termed quota immigrants not in excess of fifty (50) of any one nationality or without nationality for any one calendar year, except that the following immigrants, termed non-quota immigrants, may be admitted without regard to such numerical limitations. The corresponding Philippine Consular representative abroad shall investigate and certify the eligibility of a quota immigrant previous to his admission into the Philippines. Qualified and desirable aliens who are in the Philippines under temporary stay may be admitted within the quota, subject to the provisions of the last paragraph of Section 9 of this Act. (a) The wife or the husband or the unmarried child under twenty-one years of age of a Philippine

citizen, if accompanying or following to join such citizen. xxx He can obtain one by filing an application with the Bureau of Immigration. However, before being given the same, a Probationary Non-Quota Immigration Visa is issued for a period of one (1) year upon application. At least one (1) month before completing the one-year probationary period, he may apply for the amendment of the said probationary visa to Permanent Resident Visa. Another is the Special Resident Retirees Visa, where a foreign national desiring to live in the Philippines after retirement and enjoy the rest of his/her life here may apply for the said visa. To attract foreign nationals and to make the country a haven for retirement, the government introduced this kind of visa. Application may be filed before the Philippine Retirement Authority or the Philippine Embassy or Consulate abroad. Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated. We hope that we were able to enlighten you on the matter. Editors note: Dear PAO is a daily column of the Public Attorneys Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net.

File verified petition for adoption before family court

Published : Thursday, November 24, 2011 00:00 Written by : Persida Acosta Dear PAO, I have an 11-year-old son with a former relationship who was duly acknowledged by his father. I am now married to a French national and we agreed to adopt my son. I am still a Filipino and the biological father of my son already gave his consent to the adoption. Can we jointly adopt my son? How long will the adoption take? RG Dear RG, Adoption is defined as a juridical act which creates between two persons a relationship similar to that which results from legitimate paternity and filiation (Commentaries and Jurisprudence on the Civil Code of the Philippines, Volume One, page 554, citing 4 Valverde 473). We highly approve of your decision to adopt your illegitimate child and thereby raising his status to that of a legitimate child. Your husbands intention of joining you in the adoption and making your child as if he were his own is likewise commendable. The adoption of your illegitimate son will be governed by Republic Act No. 8552 or the Domestic Adoption Act of 1998 and the Rule on Adoption as provided in A.M. No. 02-6-02-SC, dated August 02, 2002). Your husband is not obligated to join you in the petition since you are

adopting your own illegitimate child. However, it shall be necessary that he has signified his consent to the adoption (Section 4, Rule on Adoption). Nevertheless, this does not mean that he cannot join you in filing the petition for adoption. As a rule, an alien may only adopt if he possesses all the qualifications before a Filipino may adopt and the following additional qualifications: (a) his country must have diplomatic relations with the Philippines, (b) he must be living in the Philippines for at least three continuous years prior to the filing of the petition for adoption and maintains such residence until the adoption decree is entered, (c) he has been certified by his diplomatic or consular office or any appropriate government agency to have the legal capacity to adopt in his country, and (d) his government allows the adoptee to enter his country as his adopted child. However, since your husband will be adopting your illegitimate son, the requirements pertaining to his residency and certification may be waived (Section 4, id). To jointly adopt your illegitimate son, you and your French husband should file a verified Petition for Adoption before the family court of the place where you currently reside (Section 6, id.). In addition to the consent of the biological father of your son, you also need to get the written consent of your son as he is already eleven years old and the written consents of your other illegitimate, legitimate or adopted children aged ten years old or over, should there be any (Section 9, RA 8552). If the petition for adoption is granted, your son shall be considered as you and your husbands legitimate child and as such, will be entitled to all the rights and obligations provided by law to the other children born to you without discrimination of any kind (Section 16, id.). Finally, please be reminded that this opinion is solely based on your narration of facts and our appreciation of the same. The opinion may vary if other facts are added or elaborated. We hope that we were able to address your concern. Editors note: Dear PAO is a daily column of the Public Attorneys Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net.

Disputes about the GSIS law should be filed with GSIS

Published : Wednesday, November 23, 2011 00:00 Dear PAO, I wrote a letter to the GSIS regarding the amount of the lump sum that we received because of my wifes death. The GSIS replied and said that they may adjust the benefits that we may receive based on the GSISs financial status (Section 41(e)). Did they conduct studies regarding the financial condition of the GSIS? Where should I go to file a complaint regarding this matter? John Dear John, The benefits which a GSIS member or his beneficiaries may get are contained in Republic Act No. 8291 or the GSIS Act of 1997. These benefits are given by the government as a form of social security in furtherance with its goal to promote the efficiency and welfare of government

employees. The Government Service Insurance System as created under Commonwealth Act No. 186 is the agency tasked to implement the provisions of the GSIS Act (Section 41, RA 8291). Accordingly, claims for any of the benefits due to a member or his beneficiaries must be submitted before the GSIS for proper determination. RA 8291 grants the GSIS several powers and functions which are enumerated in Section 41 of the said law. Being an express mandate of the law, the GSIS is authorized and empowered to perform each and every act provided therein. Paragraph (e) of said section empowers the GSIS to conduct continuing actuarial and statistical studies and valuations to determine the financial condition of the GSIS taking into consideration such studies and valuations and limitations provided in this law, readjust the benefits, contributions, premium rates, interest rates or the allocation or re-allocation of the funds to the contingencies covered. We regret to say that we are not in the proper position to answer your questions on the studies conducted by the GSIS, its results and/or its propriety. These should be properly addressed to none other than the GSIS. As the administrative agency tasked for the implementation of RA 8291, they have acquired expertise on the specific matters of this law. Because of this, their findings are generally accorded not only with respect but even with finality except when such findings and conclusions are not supported by substantial evidence (Buenconsejo vs. ECC and GSIS, G.R. No. L-63279, May 25, 1989). As to your second question, complaints and other disputes regarding the GSIS law should also be filed with the GSIS. The Board of Trustees may designate a hearing officer to receive evidence, make findings of facts and submit recommendations regarding the dispute or complaint. The Board will then decide within thirty (30) days from receipt of the recommendation. For cases directly heard by the Board, it will be decided upon within thirty (30) working days from the time the parties submitted it for resolution (Section 30, RA 8291). Any decision or award of the Board may be appealed in accordance with Rules 43 and 45 of the Rules of Civil Procedure (Section 31, ibid.) Finally, please be reminded that this opinion is solely based on your narration of facts and our appreciation of the same. The opinion may vary if other facts are added or elaborated. We hope that we were able to address your concern. Editors note: Dear PAO is a daily column of the Public Attorneys Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net.

Upon pensioners death, GSIS benefits go to dependent

Published : Tuesday, November 22, 2011 00:00 Written by : PERSIDA ACOSTA Dear PAO, My wife and I wish to transfer our old age GSIS monthly pension to our son who is mentally incapacitated to support himself. We are now living in the United States of America. My wife is 83 years old and I am 84 years old. How can we transfer our pensions to our son before we die? Thank you so much for your help and advice.

Truly yours, Timoteo Dear Timoteo, Considering that your concern involves a GSIS pension, we have to look into Republic Act No. 8291, otherwise known as The Government Service Insurance System Act of 1997 in order to address your query. Upon perusal of the said law, it reveals that there is no provision allowing the transfer of pension to the beneficiaries of a GSIS pensioner during the lifetime of the latter. However, Sections 20, 21 and 22 of the said law grant benefits to the beneficiaries upon the death of the pensioner provided that the requirements therein are complied with, to wit: SECTION 20. Survivorship Benefits. When a member or pensioner dies, the beneficiaries shall be entitled to survivorship benefits provided in Sections 21 and 22 hereunder subject to the conditions therein provided for. The survivorship pension shall consist of: (1) the basic survivorship pension which is fifty percent (50%) of the basic monthly pension; and (2) the dependent childrens pension not exceeding fifty percent (50%) of the basic monthly pension. SECTION 21. Death of a Member. (a) Upon the death of a member, the primary beneficiaries shall be entitled to: (1) survivorship pension: Provided, That the deceased: (i) was in the service at the time of his death; or (ii) if separated from the service, has at least three (3) years of service at the time of his death and has paid thirty-six (36) monthly contributions within the five-year period immediately preceding his death; or has paid a total of at least one hundred eighty (180) monthly contributions prior to his death; or (2) the survivorship pension plus a cash payment equivalent to one hundred percent (100%) of his average monthly compensation for every year of service: Provided, That the deceased was in the service at the time of his death with at least three (3) years of service; or (3) a cash payment equivalent to one hundred percent (100%) of his average monthly compensation for each year of service he paid contributions, but not less than Twelve thousand pesos (P12,000.00): Provided, That the deceased has rendered at least three (3) years of service prior to his death but does not qualify for the benefits under the item (1) or (2) of this paragraph.

(b) The survivorship pension shall be paid as follows: (1) when the dependent spouse is the only survivor, he/she shall receive the basic survivorship pension for life or until he/she remarries; (2) when only dependent children are the survivors, they shall be entitled to the basic survivorship pension for as long as they are qualified, plus the dependent childrens pension equivalent to ten percent (10%) of the basic monthly pension for every dependent child not exceeding five (5), counted from the youngest and without substitution; (3) when the survivors are the dependent spouse and the dependent children, the dependent spouse shall receive the basic survivorship pension for life or until he/she remarries, and the dependent children shall receive the dependent childrens pension mentioned in the immediately preceding paragraph (2) hereof. (c) In the absence of primary beneficiaries, the secondary beneficiaries shall be entitled to: (1) the cash payment equivalent to one hundred percent (100%) of his average monthly compensation for each year of service he paid contributions, but not less than Twelve thousand pesos (P12,000): Provided, That the member is in the service at the time of his death and has at least three (3) years of service; or (2) in the absence of secondary beneficiaries, the benefits under this paragraph shall be paid to his legal heirs. (d) For purposes of the survivorship benefits, legitimate children shall include legally adopted and legitimate children. SECTION 22. Death of a Pensioner. Upon the death of an old-age pensioner or a member receiving the monthly income benefit for permanent disability, the qualified beneficiaries shall be entitled to the survivorship pension defined in Section 20 of this Act, subject to the provisions of paragraph (b) of Section 21 hereof. When the pensioner dies within the period covered by the lump sum, the survivorship pension shall be paid only after the expiration of the said period. Your son, being according to you is mentally incapacitated, may be considered as your dependent child and becomes your primary beneficiary who may be entitled to the claim for survivorship benefits upon your demise and your wifes. He will however be required to submit an application for survivorship benefits together with Affidavit of Legal/Certified Guardian of Incapacitated Dependent Child. The Affidavit shall be supported by a court order or a Certification for Guardianship from the Barangay Captain/Official where the incapacitated dependent child is residing. These shall be executed every year during Annual Renewal of Active Status (ARAS) and shall serve as the basis of GSIS in conducting further investigation as to qualification of dependent spouse and/or children. Failure on the part of the survivorship pensioner/s to submit the required affidavit shall be a ground for the suspension of the survivorship pension (http://www.gsis.gov.ph/default.php?id=45).

We hope that we were able to enlighten you on the matter. Please take note however, that all the information contained herein are based on our appreciation of the facts you provided us with. A different legal opinion may be given if other facts not included in your query will be discussed. Editors note: Dear PAO is a daily column of the Public Attorneys Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net.

Changing SSS beneficiary after divorce abroad

Published : Monday, November 21, 2011 00:00 Article Views : 1,049 Written by : PERSIDA ACOSTA Dear PAO, I was a member of the Social Security System when I was still working in the Philippines. I ceased paying my dues when I went abroad. During the time of my membership, I got married and made my wife the automatic beneficiary. I acquired a Canadian citizenship and got a divorce and remarried a Filipino citizen. My present wife resumed paying my SSS dues. My question is: Who will be my primary beneficiary, my present spouse or my divorced wife? I have inquired from the Legal Department of the SSS District Office but their answers were more of the divorce issue than the beneficiary issue. Which office section handles this beneficiary issue? Roger Dear Roger, It is our humble view that it should be the Opinion Section of the Corporate Department of the Social Security System (SSS), which should address your concern. Nevertheless, we will try to shed light to your query based on existing laws and jurisprudence. The law that can address your query is Republic Act , 8282 or the Social Security Law. Paragraphs (e) and (k) of Section 8 of the said law define several terms which are necessary to address your query, to wit: SEC. 8. Terms Defined.For the purposes of this Act, the following terms shall, unless the context indicates otherwise, have the following meanings: (e) Dependents The dependents shall be the following: (1) The legal spouse entitled by law to receive support from the member; x x x (k) Beneficiaries The dependent spouse until he or she remarries, the dependent legitimate, legitimated or legally adopted, and illegitimate children, who shall be the primary beneficiaries of the member: x x x.

In the case of Social Security System vs. Rosanna H. Aguas, et. al. (G.R. No. 165546, February 27, 2006), the Supreme Court has ruled that for the wife to qualify as a primary beneficiary, she must prove that she was the legitimate spouse dependent for support from the employee. The claimant-spouse must therefore establish two qualifying factors: (1) That she is the legitimate spouse, and (2) that she is dependent upon the member for support. To become a legitimate spouse, it presupposes that there is a valid marriage between the husband and the wife. This is where the issue of divorce comes in relative to your case. Being a Canadian citizen now, if the divorce you obtained is in accordance with the laws of the country where you obtained it, the said divorce is valid in the Philippines, which has the effect of severing your marital ties with your first wife. It follows then that your first wife is no longer your legitimate spouse. Considering that you have contracted a subsequent marriage after you obtained a valid divorce, we assume that the divorce decree has allowed you to remarry. Thus, your present wife may now be considered as your beneficiary, now, being your legitimate spouse, provided however that she is dependent upon you for support. In this connection, it is worth emphasizing that you still have to file a Petition for Recognition of the divorce decree you obtained before the Philippine court. This is because before a foreign divorce decree can be recognized by our own courts, you must prove the divorce as a fact and demonstrate its conformity to the foreign law allowing it. Such foreign law must also be proved because our courts cannot take judicial notice of foreign laws. Like any other fact, such laws must be alleged and proved (Republic of the Philippines vs Cipriano Orbecido III G.R. No. 154380 October 5, 2005 citing Cortes v. Court of Appeals, G.R. No. 121772, 13 January 2003 and Garcia v. Recio, G.R. No. 138322, 2 October 2001). We hope that we were able to enlighten you on the matter. Please take note, however, that all the information contained herein are based on our appreciation of the facts you provided us with. A different legal opinion may be given if other facts not included in your query will be discussed. Editors note: Dear PAO is a daily column of the Public Attorneys Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net.

Contract terms and stipulations serve as law between contracting parties

Published : Sunday, November 20, 2011 00:00 Article Views : 1,025 Written by : PERSIDA ACOSTA Dear PAO, My wife bought a lot from a developer. While I was reading the Deed of Restriction, a stipulation caught my attention. It states there that in case the buyer decides to renovate or construct his/her property, there is a construction bond in the amount of P20,000 and inspection

fee worth P2,000. Though the construction bond is refundable, still the buyer will be forced to shell out that amount. To make matters worse, the P2, 000 inspection fee will be forfeited in favor of the developer. Why is it that developers are allowed to charge an inspection fee when it should be their duty to inspect? I think it is just a burden on the part of the buyer. I hope you can help us so that the charges will be mitigated and so that the imposition of inspection fee will be disallowed. Thank you for your generous and worthwhile service to the public. Noel Dear Noel, We understand your concern about your wifes obligations insofar as her contract with the developer is concerned, more particularly relative to the provisions of the Deed of Restrictions. In as much as it is our desire to help you and your wife in mitigating your costs, should either of you decide to renovate or construct her property, we regret to inform you that it is beyond our control and authority to do the same. First and foremost, there exists a contract between your wife and the developer from whom she bought the lot. As a rule, the terms and stipulations of the contract serve as the law between the contracting parties. Hence, they should comply in good faith (Article 1159, New Civil Code of the Philippines). If your wife signed and accepted the contract of sale of the subject lot, knowing fully well that the Deed of Restrictions is a part of such agreement, she is bound by the terms thereof. It is not very uncommon for contracts to be more beneficial to one party than the other. Most of the time, parties to a contract require certain provisions to be stated therein in order to protect them. As in the situation of your wife, the Deed of Restrictions appears to be more beneficial to the developer and burdensome to your wife as well as to the other buyers. However, we find nothing abhorring about this type of agreement. It is normal for developers to indicate restrictions so that they can monitor the changes to be made in the property and such changes will still be at par with the type of houses within their subdivisions. Aside from the foregoing, we would like to emphasize that, like in all other contracts, the parties to a contract of sale are free to stipulate the terms which will govern them. In fact, our laws recognize the right of the contracting parties to establish such stipulations, clauses, terms and conditions as they may deem convenient, provided that these are not contrary to law, morals, good customs, public order, or public policy (Article 1306,id). When your wife signed the contract of sale and bought the property, it presupposes that she read all documents relating to such sale, that she was aware of what her obligations are as a buyer, she assumed all those obligations and bound herself to comply thereto. She will have difficulty questioning the terms indicated in the Deed of Restrictions at this point in time considering that she has already bought the lot under a contract. If, in the beginning she felt at a disadvantage, she should have communicated her concerns with the developer. Perhaps that way, they could have entered into a special arrangement such as amending the terms of the Deed of Restrictions or deleting the portions of the Deed pertaining to the payment of the construction bond in the amount P20, 000.00 as well as the inspection fee of P2, 000.00. Since no amendment was made, she is bound to comply with all her obligations.

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. Editors note: Dear PAO is a daily column of the Public Attorneys Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net.

Free legal help to poor earners of less than P13,000 a month

Published : Saturday, November 19, 2011 00:00 Article Views : 767 Written by : Persida Acosta Dear PAO, Good morning! I read some of your advices regarding on how to change the gender in the birth certificate and I understand your responses. My question is: Is there a fee if I am going to the attorney to change my gender in my birth certificate? Thank you. Fhriestley Dear Fhriestley, The filing of a Petition for Correction of Entry in the Civil Registry in accordance with Rule 108 of the Revised Rules of Court in order to change your gender in your birth certificate would entail the services of a lawyer and the expending for the filing fee, publication and other miscellaneous expenses in attending the hearing of the said petition. In the event that you will be engaging the services of a private lawyer, you may be asked to pay him a fee which may include acceptance fee and appearance fee depending on the agreement which you and the lawyer may enter into. Nevertheless, if you do not have sufficient means to engage the services of a private lawyer, you may seek the assistance of our office, the Public Attorneys Office (PAO). At this juncture, we would like to apprise you that PAO is the government office that is primarily tasked to render free legal assistance to indigent clients, who are in need of free legal services. In line with this mandated duty of our office, all prospective clients of the PAO are subjected, among others, to the indigency and merit tests. Thus, the requirement for you to become a bona fide client of our office and to be able to obtain the services of our public attorney is to pass the said tests. The indigency test provides that the following shall be considered indigent persons: 1. If residing in Metro Manila, whose net income does not exceed Php14,000.00 a month; 2. If residing in other cities, whose net income does not exceed Php13,000.00 a month;

3. If residing in other places, whose net income does not exceed Php 12,000.00 a month. The term net income as herein employed shall be understood to refer to the income of the litigant less statutory deductions. Statutory deductions shall refer to withholding taxes, GSIS, SSS, Pag-Ibig, Health Insurance and Phil-health premiums as well as mandatory deductions (Section 1, Me-morandum Circular No. 02, Series of 2010 Amending Sections 3, 4, and 5, Article II of Memorandum Circular No. 18, Series of 2002Amended Standard Office Procedures in Extending Legal Assistance). You shall then be required to execute an Affidavit of Indigency and to submit any of the following documents: 1. Latest Income Tax Return or pay slip or other proofs of income; or 2. Certificate of Indigency from the Department of Social Welfare and Development, its local District Office, or the Municipal Social Welfare and Development Office having jurisdiction over your residence; or 3. Certificate of Indigency from the Barangay Chairman having jurisdiction over your residence (Section 1, paragraph 6, Memorandum Circular No. 02, Series of 2010). Nevertheless, passing the indigency test does not necessarily mean that you are already qualified to avail of the free legal services offered by the PAO. Aside from the indigency test, your case must also pass the merit test such that it should be meritorious. A case shall be considered meritorious if an assessment of the law and evidence on hand discloses that the legal services of the office will assist, or be in aid of or in furtherance of justice, taking into consideration the interests of the party and those of society. Otherwise, if it appears that the case has no chance of success, or it is intended merely to harass or injure the opposite party or to work oppression or wrong, this office must decline the case. (Section 2 paragraph 1, Article II, Memorandum Circular No. 18, Series of 2002) Thus, if you pass our indigency and merit tests, our office can extend free legal assistance to you in filing the petition, including exemption from the payment of court fees incidental to the filing of the case We hope that we were able to fully address your query. Editors note: Dear PAO is a daily column of the Public Attorneys Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net.

Father must acknowledge his daughter

Published : Friday, November 18, 2011 00:00 Article Views : 1,203 Written by : PERSIDA ACOSTA Dear PAO, Good day. I am a single mother. The father of my daughter is married and has 2 kids. We had a relationship in Saudi Arabia but when I got pregnant, he sent me home. My entire pregnancy was not supported by him until I gave birth. When my baby was 2 months old, he communicated with me and he wanted to see the child. I sent him pictures thru e-mail. At first, he sent me Php15,000.00. Then, the next time, he gave only Php8,000.00. Now, I am asking for support again. I called and texted him but he did not answer my calls and texts. What shall I do? I have no work and the money of my parents is enough only to support our needs except that for my baby. The father of my daughter is working in a big company in Jedah, Saudi Arabia. He is the head manager in a fast food chain. I know his wife knows that we have a child. The surname of my daughter is mine since he failed to acknowledge the child. Can I ask for support for my daughter who is 5 months old now? Please help me. Mae Dear Mae, Being born out of wedlock, your daughter is considered as an illegitimate child. Article 195 of the Family Code of the Philippines provides and enumerates the people obliged to support each other. Among them are the parents and their illegitimate children and the legitimate and illegitimate children of the latter. However, in the case of Ben-hur Nepomuceno vs. Arhbencel Ann Lopez (G.R. No. 181258, March 18, 2010), the illegitimate childs entitlement to support is dependent on the determination of the childs filiation. And the relevant provisions of the Family Code provide as follows: ART. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children.x x x ART. 172. The filiation of legitimate children is established by any of the following: (1) The record of birth appearing in the civil register or a final judgment; or (2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned. In the absence of the foregoing evidence, the legitimate filiation shall be proved by:

(1) The open and continuous possession of the status of a legitimate child; or (2) Any other means allowed by the Rules of Court and special laws. Thus, an illegitimate child should have been recognized by the alleged father through an admission of filiation in a public document or a private handwritten instrument and signed by him in order for the illegitimate child to be entitled to receive financial support from him. Considering that according to you, your daughter was not yet recognized by her alleged father and we assume that the latter has not signed the birth certificate of your daughter since she is using your surname, we enjoin you to first request the father to acknowledge your daughter by executing an Affidavit of Acknowledgment or to execute a private handwritten instrument recognizing your daughter as his own. After such, you may now ask for support from him. However, if the father failed or refused to acknowledge your daughter, you, in her behalf, has to file an Action for Recognition and Support against her alleged father. You should be able to establish her filiation to her father through other means mentioned above. The alleged father may be compelled by the court to recognize your daughter and to provide her with financial support. We hope we were able to enlighten you on the matter. Please take note however, that all the information contained herein are based on our appreciation of your questions. A different legal opinion may be given if other facts not included in your query will be discussed. Editors note: Dear PAO is a daily column of the Public Attorneys Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net.

Visit DFA website, set date for your appointment

Published : Thursday, November 17, 2011 00:00 Article Views : 941 Written by : PERSIDA ACOSTA Dear PAO, My mother applied for the late registration of my birth. I went to the National Statistics Office (NSO) and I was able to get a copy of my authenticated birth certificate. I want to apply for my passport. Will I be asked to present any other document aside from my birth certificate? I hope you can respond to this letter. Thank you. Severino Dear Severino,

The law governing the issuance of Philippine passports is Republic Act No. 8239 or commonly known as the Philippine Passport Act of 1996. As provided therein, no passport shall be issued to an applicant unless the Secretary of Foreign Affairs or his duly authorized representative is satisfied that the applicant is a Filipino citizen and has complied with the requirements for such application (Section 5, id). Based on the letter that you sent us, we find no indication as to whether or not you are a Filipino citizen. You merely mentioned in your letter that your mother applied for the late registration of your birth. But such application does not, by itself, suggest that you are in fact a Filipino citizen. Even the fact that you were issued authenticated birth certificate does not imply that you are a Filipino citizen. It is worth mentioning that even foreigners who are born in the Philippines may have their births registered in the Local Civil Register of the place where they were born and thereafter be issued an NSO-authenticated birth certificate. Therefore, it is essential for you to establish first whether you are indeed a citizen of the Philippines. Assuming that you are a Filipino citizen and you wish to apply for a Philippine passport, you may visit the website of the Department of Foreign Affairs at www.dfa.gov.ph and set the date for your appointment. You can download, fill up and print the application form which can be viewed in the said website. You may also set an appointment by calling the hotline of the Department of Foreign Affairs at (02) 737-1000. You should bring the following documentary requirements on your scheduled appointment: (1) Birth Certificate in Security Paper (SECPA) issued by the National Statistics Office or Certified True Copy of the birth certificate issued by the Local Civil Registrar duly authenticated by the NSO; (2) Original identification such as Senior Citizens ID, Voters ID, digitized government-issued IDs like SSS, PRC, BIR, Drivers License, original school ID (for students only) and original supporting documents indicating your full name, date and place of birth and citizenship; and (3) Duly-accomplished application form. Considering that your birth certificate was registered late, you must submit one original supporting document indicating your full name, date and place of birth, and citizenship prior to the date of late registration, if your birth was registered on or before year 2000. If your birth was registered on or after 2001, you must submit two original supporting documents indicating your full name, date and place of birth, and citizenship prior to the date of such late registration. On the other hand, if you are a foreigner and you wish to apply for a foreign passport, it will be more prudent for you to visit the embassy or consular office of such country. We hope that we were able to answer your query. 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. Editors note: Dear PAO is a daily column of the Public Attorneys Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net.

Use of stepfathers surname has no legal basis

Published : Tuesday, November 15, 2011 00:00 Article Views : 1,444 Written by : PERSIDA ACOSTA Dear PAO, My mother was single when I was born. Hence, the surname in my birth certificate is that of my mother. When she met my stepfather, the latter made a deed of acknowledgment stating that I am his child. When I requested a copy of my birth certificate using my mothers surname, the result was negative. But when I requested for my birth certificate with my stepfathers surname, the NSO gave me a birth certificate reflecting my given name and the surname of my mother but with an annotation of acknowledgment on its side. I dont want to use the surname of my stepfather because of personal reasons. Can I file a correction of entry in my birth certi Teresa Dear Teresa, Illegitimate children shall use the surname of his mother (Article 176, Family Code). However, if the child was acknowledged by the father, he may use the surname of the said father upon submission with the local civil registry of the place where the said child was born, of an Affidavit to Use the Surname of the Father (AUSF) or an acknowledgment written in a public document or private handwritten document (R.A. 9255 and Administrative Order No. 1, Series of 2004, National Statistics Office). Thereafter, the local civil registrar shall write an annotation, as follows: Acknowledged by (name of father) on (date). The surname of the child is hereby changed from (original surname) to (new surname) on (date) pursuant to RA 9255. You have stated in your problem that you were registered under the name of your mother, who was single when you were born. You also stated that you surname was changed to that of your stepfather because he executed an affidavit acknowledging you as his child. The father that is being mentioned in R.A. 9255 is the biological father since it is he who has filiation or blood relation with the child. Your stepfather, who is the husband of your mother, cannot execute an affidavit of acknowledgement because you are not his child. Thus, the change of your surname to that of your stepfather has no basis. This assertion of a falsehood may even make your stepfather liable for perjury. Perjury, punishable under Article 183 of the Revised Penal Code, is the willful and corrupt assertion of a falsehood under oath or affirmation administered by authority of law on a material matter. In order to correct this error, you may file a Petition for Cancellation or Correction of Entry in the Civil Registry (Rule 108, Rules of Court), wherein you shall state therein and prove in court that there was an error in the registration of the affidavit of acknowledgment executed by your stepfather. Your surname in the birth certificate shall revert to that of your mother upon order or

cancellation of the annotation. Please be reminded that the above legal opinion is solely based on our appreciation of the problem that you have stated. The opinion may vary when other facts are elaborated. Editors note: Dear PAO is a daily column of the Public Attorneys Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net.

Probating a will executed abroad

Published : Monday, November 14, 2011 00:00 Article Views : 1,381 Dear PAO, My sister died in California leaving a last will and testament where I was named as the executor/administrator of the will. I want to know how I can claim the pieces of property that she left in the Philippines. I hope you can help me. PT Dear PT, When a person dies, all of his pieces of property, whether real or personal, which are not extinguished by his death, shall pass to his heirs or to some other persons through succession (Article 774, Civil Code of the Philippines). This may be done by making a will or by operation of law. A will is defined as an act whereby a person is permitted with the formalities prescribed by law, to control to a certain degree the disposition of his estate, to take effect after his death (Article 783, ibid). The pieces of property of the testator, however, shall pass only to the persons named in his will once it is duly proved and allowed in accordance with the Rules of Court (Article 838, ibid.) The last will and testament which your sister executed in California must first be allowed and proved in our courts before any of her personal or real pieces of property in the Philippines may pass to her heirs. As the executor of the will, you may file a petition for probate before the Regional Trial Court of the place where she resides at the time of her death, or if she is already a resident of California, to the Regional Trial Court of the place where she had an estate. The petition shall state, among others, jurisdictional facts, names, ages and residences of the heirs, legatees and devisees of the testator, and the probate value and the character of the property of the estate. In addition to this, it must also be shown that the will was validly executed in accordance with the laws of the State of California, where it was made. A certificate of allowance will be issued by the court if it is satisfied that the will was duly executed and that the testator was of sound mind at the time of its execution. However, if your sisters will has already been probated in California, you may file a petition for allowance of her will in accordance with Section 1, Rule 77 of the Rules of Court. The evidence necessary for the reprobate or allowance of wills which have been probated outside of the Philippines are as follows: (1) the due execution of the will in accordance with the foreign laws;

(2) the testator has his domicile in the foreign country and not in the Philippines; (3) the will has been admitted to probate in such country; (4) the fact that the foreign tribunal is a probate court, and (5) the laws of a foreign country on procedure and allowance of wills (Salud Teodoro Vda. de Perez vs. Hon. Zotico A. Tolete, G.R. No. 76714, June 2, 1994). Upon compliance with the foregoing, a certificate of allowance shall be issued by the court and the will shall have the same effect as if originally proved and allowed in such court (Section 3, Rule 77, Rules of Court). Please be reminded that this opinion is solely based on your narration of facts and our appreciation of the same. The opinion may vary if other facts are added or elaborated. We hope that we were able to address your concern. Editors note: Dear PAO is a daily column of the Public Attorneys Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net.

Filipino citizenship obtained by naturalization

Published : Sunday, November 13, 2011 00:00 Article Views : 1,218 Written by : PERSIDA ACOSTA Dear PAO, My parents were married in 1954. My father is Chinese and my mother is born Filipino. Our birth certificates, however, indicate that my mothers citizenship is Chinese because she also became Chinese upon her marriage to my father. Consequently, my siblings and I are considered Chinese for having Chinese parents. Is there really a law which changes the citizenship of a Filipina upon her marriage to a foreigner? I have always considered myself as a Filipino and have resided in the Philippines since birth. I got married to a Filipino when I was 25 years old. Can I be considered a Filipino? If not, how can I get a Philippine citizenship? Marivic Dear Marivic, Your question may be answered by an evaluation of the pertinent provisions of Commonwealth Act No. 63 entitled An Act Providing for the Ways in which Philippine Citizenship may be lost or Reacquired, which was approved on October 21, 1936. Section 1 thereof provides: Section 1. How citizenship may be lost. A Filipino citizen may lose his citizenship in any of the following ways and/or events: xxx 7) In the case of a woman, upon her marriage to a foreigner if, by virtue of the laws in force in her husbands country, she acquires his nationality.

Xxx Since your parents were married during the effectivity of this law, your mother, who is born Filipino, is considered to have lost her Philippine citizenship and have acquired Chinese citizenship upon her marriage to your father, who is a Chinese citizen. The Supreme Court of the Philippines in the case of Cabacug vs. Lao (GR No. L-27036, November 26, 1970), had the occasion to state that a Filipino woman follows the citizenship of her foreigner husband, to wit: The pivotal question determinative of this controversy is, as made clear at the outset, the right to repurchase of plaintiff, which on the face of the undisputed facts is quite evident were it not for the plea by defendants that she had lost her Filipino citizenship by marrying a Chinese national, who thereafter died, and she had not reacquired the same. Such a marriage did occur on January 26, 1944. She did lose then under our statute and controlling decisions her Filipino citizenship having acquired by such marriage her husbands nationality. (emphasis supplied) Being born of Chinese parents, you and your siblings are also considered Chinese citizens even if you were all born in the Philippines. This is in consonance with the principle of jus sanguinis which has been the basis of acquiring Philippine citizenship since the effectivity of the 1935 Constitution. Under this principle, a child follows the nationality or citizenship of the parents regardless of the place of his birth. The fact that you have always considered yourself as a Filipino and have been residing in the Philippines since your birth will not divest you of your Chinese citizenship. To obtain Philippine citizenship, you may file a petition for administrative naturalization before the Special Committee on Naturalization in accordance with Republic Act No. 9139 or the Administrative Naturalization Law of 2000. You may also acquire Philippine citizenship by applying for a petition for cancellation of your Alien Certificate of Registration by virtue of your marriage to a Filipino before the Bureau of Immigration, stating among other things, that you are married to a Filipino and that you are not disqualified from acquiring your husbands citizenship pursuant to our naturalization law (Moy Ya Lim vs. Commissioner of Immigration, G.R. No. L-21289 October 4, 1971). Please be reminded that this opinion is solely based on your narration of facts and our appreciation of the same. The opinion may vary if other facts are added or elaborated. We hope that we were able to address your concern. Editors note: Dear PAO is a daily column of the Public Attorneys Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net.

Registrar can set changes in birth certificate

Published : Friday, November 11, 2011 00:00 Article Views : 1,316 Written by : PERSIDA ACOSTA

Dear PAO, How much would it cost for changing my gender in my birth certificate and how long will it take for the issuance of a new one? As of now, I dont have much money to spend for it. Andrel Dear Andrel, The enactment into law of Republic Act No. 9048 simplified the process of correcting or changing the entries in the civil register. If before, a court order/decision is needed to effect changes or corrections of entries in the civil register, under this law, the City or Municipal Civil Registrar and consul general are given the authority to effect the same without need of a court order. In a way it amended the New Civil Code of the Philippines particularly Articles 376 and 412. According to these provisions, no entry in the civil register shall be changed or corrected, unless a judicial order directing the civil registrar to effect the changes or corrections is obtained. Nevertheless, RA 9048 did not absolutely grant the power to the aforementioned public officers to do the changes in the civil register as the errors that they may correct or change are clerical or typographical in nature. Section 2 (4) thereof provides: Clerical or typographical error refers to a mistake committed in the performance of clerical work in writing, copying, transcribing or typing an entry in the civil register that is harmless or innocuous, such a misspelled name or misspelled place of birth or the like, which is visible to the eyes or obvious to the understanding and can be corrected or changed only by reference to other existing record or records: Provided, however, that no correction must involve the change of nationality, age, status or sex of the petitioner. Thus, since the error in your birth certificate pertains to your sex or gender, the said law is not applicable to you. Indeed, a court order is needed for the correction of the erroneous entry of your gender in your birth certificate. This may be accomplished by filing a Petition in court for the said purpose. However, there is no exact amount that you are going to spend for the said petition. The same depends on many factors, such as the fees that you are going to pay to the court, the legal services of the private lawyer who will assist and represent you during the trial of the case, the publication of the Petition in a newspaper of general circulation, among others. Likewise, there is no exact duration within which the Petition will be completed as the same depends on the courts calendar, the publication of the Petition, lawyers schedule, the availability of the witnesses to be presented, etc. You mentioned in your letter that you have no sufficient means to pay for the expenses for the filing of the petition. If you are qualified, our Office can extend free legal assistance to you and as a client you are likewise exempted from the payment of court fees incidental to the filing of

the case. However, you will shoulder the expenses for the publication of the petition. Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated. We hope that we were able to enlighten you on the matter. Editors note: Dear PAO is a daily column of the Public Attorneys Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net.

Dead parents estate can be distributed

Published : Thursday, November 10, 2011 00:00 Article Views : 1,396 Written by : PERSIDA ACOSTA Dear PAO, My father died last year. My parents were married in 1978 and have acquired some parcels of land here in Bulacan and some personal properties during their marriage. Am I also entitled to my fathers properties even if my mother is still alive? My father has no last will and testament. Do we have to go to court for the distribution of his properties? RN Dear RN, Before the effectivity of the Family Code, the regime of conjugal partnership of gains governs the property relations between the spouses. Marriages which took place before August 03, 1988 will have the said partnership as their property relations in the absence of marriage settlement between the spouses. We would assume that your parents did not execute a marriage settlement when they were married and that they are governed by the conjugal partnership of gains. Hence, the properties which they acquired during their marriage are considered as their conjugal or common properties. Their share in these properties shall be presumed equal unless they have agreed on a different partition. Half of these properties shall belong to your father as his share and the other half shall belong to your mother as her share. Since your father already passed away, his share will be given to you and your mother as his legal heirs (Article 887, Civil Code of the Philippines). The estate of your father may be settled and distributed to you and your mother without going to court by means of an extrajudicial settlement. Section 1, Rule 74 of the Rules of Court provides that if the decedent left no will and no debts and the heirs are all of age, or the minors are represented by their judicial or legal representatives duly authorized for the purpose, the parties may, without securing letters of administration, divide the estate among themselves as they see fit, by means of a public instrument filed in the Office of the Register of Deeds. You need to file

a bond with the said register of deeds in an amount equivalent to the value of the personal property left by your father as certified to under oath by you and your mother, and conditioned upon any just claim that may be filed against the property (Section 4, ibid.). The certificates of title of the parcels of land left by your father shall also contain an annotation regarding the twoyear lien previously mentioned. This may be cancelled by the register of deeds after the lapse of two years without need of court order (Regalado, Remedial Law Compendium Book II (10th ed.), page 23, citing LRC Circular No. 143, dated January 28, 1964). You also need to cause the publication of the fact of the extrajudicial settlement of your fathers estate for three (3) consecutive weeks in a newspaper of general circulation in your province. You and your mother then may divide among yourselves the properties left by your father as you see fit provided that neither you nor your mother is deprived of your respective lawful share in the inheritance. Please be reminded that this opinion is solely based on your narration of facts and our appreciation of the same. The opinion may vary if other facts are added or elaborated. We hope that we were able to address your concern.

1973, 1987 Charter affirm citizenship by birth

Published : Wednesday, November 09, 2011 00:00 Article Views : 1,184 Written by : PERSIDA ACOSTA Dear PAO, My question is about the citizenship of my mother. My mother was born here in the Philippines. Her father is Chinese and her mother is a Filipina. It was indicated in her birth certificate that she is a Chinese citizen. She has never been to China and has always believed herself to be a Filipino. Sheryl Dear Sheryl, You failed to mention in your letter the date of birth of your mother. Without this information, we cannot properly answer your question regarding her citizenship as we do not know which of our citizenship laws will apply to her. This is because the citizenship of a person is determined by the law in effect at the time of his birth and not by how the person believes himself to be. For purposes of discussion and for the benefit of our readers, we will briefly discuss the different citizenship law of the Philippines. In the case of Valles vs. COMELEC (GR No. 137000, August 09, 2000), the Supreme Court had the occasion to state that the Philippine Bill of 1902 and the Jones Law apply in determining the citizenship of those who were born before the effectivity of the 1935 Constitution. Under these laws, those who are inhabitants of the Philippines and who continued to reside therein and their children born subsequent thereto, will be considered to be citizens of the Philippines. When the 1935 Constitution took effect, the principle of jus sanguinis became the basis of acquisition of

Philippine citizenship. Under this principle, a child follows the nationality or citizenship of the parents regardless of the place of his birth. Article IV, Section 1 of the 1935 Constitution provides that only the following persons are considered citizens of the Philippines, (1) Those who are citizens of the Philippine Islands at the time of the adoption of this Constitution; (2) Those born in the Philippine Islands of foreign parents who, before the adoption of this Constitution, had been elected to public office in the Philippine Islands; (3) Those whose fathers are citizens of the Philippines; (4) Those whose mothers are citizens of the Philippines and, upon reaching the age of majority, elect Philippine citizenship; 5) Those who are naturalized in accordance with law. Hence, if your mother was born during the effectivity of this Constitution, she will only be considered a Filipino if she elected Philippine citizenship when she reached the age of majority. If she failed to do so, she will be considered as a Chinese citizen considering that her citizenship follows that of her alien father. When the 1973 Constitution took effect, a person will be considered a citizen of the Philippines if his father or his mother is a Filipino (Section 1, Article III). The same is true with the present 1987 Constitution (Section 1, Article IV). Under these Constitutions, those who were born of an alien father and a Filipino mother will be considered as citizens of the Philippines even without electing Philippine citizenship upon reaching the age of majority. Please be reminded that this opinion is solely based on your narration of facts and our appreciation of the same. The opinion may vary if other facts are added or elaborated. We hope that we were able to address your concern. Editors note: Dear PAO is a daily column of the Public Attorneys Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net.

Adopt wifes child so he becomes adopters legitimate child

Published : Tuesday, November 08, 2011 00:00 Article Views : 994 Written by : PERSIDA ACOSTA Dear PAO, I am a government employee, married for two years to my wife who has an illegitimate child from a former relationship. We have plans of adopting the child in order for him to avail the benefits which may be accorded if he is my legitimate child. I consider him as my own son, but, the problem is, his birth certificate was signed by his father. What may we do with our situation? Ronnie Dear Ronnie, If it is indeed your intention to make the illegitimate child of your wife as your own for him to enjoy the benefits of a legitimate child, we suggest that you pursue your plans of adopting the child.

Adoption is a process wherein a child becomes the legitimate child of the adopters. When a child is adopted he shall be entitled to the following rights: (1) Except in cases where the biological parent is the spouse of the adopter, all legal ties between the biological parents(s) and the adoptee shall be severed and the same shall then be vested on the adopter(s); (2) The adoptee shall be considered the legitimate son/daughter of the adopter(s) for all intents and purposes and as such is entitled to all the rights and obligations provided by law to legitimate sons/daughters born to them without discrimination of any kind. To this end, the adoptee is entitled to love, guidance, and support in keeping with the means of the family; (3) In legal and intestate succession, the adopter(s) and the adoptee shall have reciprocal rights of succession without distinction from legitimate filiation. However, if the adoptee and his/her biological parent(s) had left a will, the law on testamentary succession shall govern (Section 16, 17, 18, R.A. 8552, Domestic Adoption Act of 1998). Adoption may proceed notwithstanding the fact that the child has been acknowledged by his father in his birth certificate, as in the case of the illegitimate child of your wife. Since the father is known, it is required that you get a written consent from the said father (Section 9 [b] R.A. 8552, Domestic Adoption Act of 1998). This written consent is necessary before the court proceeds with the adoption process. The Public Attorneys Office (PAO) may provide for legal representation and assistance regarding your desire to file an adoption case since you are the stepfather of the child whom you wish to adopt. Under the PAO Operations Manual, our Office may handle adoption cases provided that the adopter is the biological parent or the step-parent of the adoptee provided further that such adopter would qualify as an indigent under the regulations of the Office (Section 8, PAO Operations Manual, Office Order No. 137, series of 2010). Please be reminded that the above legal opinion is solely based on our appreciation of the problem that you have stated. The opinion may vary when other facts are elaborated. Editors note: Dear PAO is a daily column of the Public Attorneys Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net.

Former live-in partner leaves huge debts

Published : Monday, November 07, 2011 00:00 Article Views : 1,285 Written by : PERSIDA ACOSTA Dear PAO, I used to be in a live-in relationship with a woman who, like myself, was married and separated from her spouse but not annulled. Two years before our breakup, she engaged in a business for herself. She operated, managed and controlled the business solely. I had no participation in her business whatsoever. About four years ago, her business got into trouble and she went bankrupt. She left a lot of business debts. Can I be held responsible for her unpaid business debts? Can her creditors go after a house and lot which my sister and I inherited from our mother? Jose

Dear Jose, Your liability for the debts of the business of your former common-law-wife depends on the presence of partnership between you and the latter. You may be held liable to the business debts if you are a partner to the business of your former common-law-wife. There is partnership when two or more persons bind themselves to contribute money, property, or industry to a common fund, with the intention of dividing the profits among themselves (Article 1767, Civil Code). You have stated that the business of your former common-law wife is solely managed, operated and controlled by her alone. You also stated that you have no participation in the business. Nevertheless, you may still be liable for the business debts even if you have no participation in the management or operation of the business, if it proved that you have contributed money or property to the business with the intention of dividing the profits among you and your former common-law wife. As such you shall be liable for all the debts incurred by the partnership under Article 1816 of the Civil Code which provides that all partners, including industrial ones, shall be liable pro rate with all their property and after all the partnership assets have been exhausted, for the contracts which may be entered into in the name and for the account of the partnership, under its signature and by a person authorized to act for the partnership. Thus the house and lot which you inherited from your mother may answer for the debts but only insofar as your share to the property is concerned. On the other hand, if you have not contributed money or property, the creditors of your commonlaw-wifes business cannot demand payment from you. Neither can they run after your share in the property which you and your sister inherited from your parents as payment thereof. Please be reminded that the above legal opinion is solely based on our appreciation of the problem that you have stated. The opinion may vary when other facts are elaborated. Editors note: Dear PAO is a daily column of the Public Attorneys Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net.

Court order can compel your sister to produce property titles

Published : Sunday, November 06, 2011 00:00 Article Views : 1,094 Written by : PERSIDA ACOSTA Dear PAO, Good day to you! I am a seaman. I would just like to ask you regarding the last will and testament of my dad. According to my dad, he already executed his last will and testament right before my mom died in July 2009. The problem according to him is that all the titles of his properties are in the custody of my second eldest sister. We asked my sister about it but she does not want us to see

the titles. The reason why the titles are in her custody is because my dad cannot go to the municipal hall to pay the taxes. He cannot walk and travel due to his old age. He is already 83 years old. My 3 other sisters and I would like to ask you, if ever something happens to our dad and all the titles of the properties of my dad are with my second eldest sister, is it possible for her to deny it? Is it possible for her not to surrender the titles? What will happen to us if she does not like to give us the titles? Can the last will and testament of my dad and mom help us to recover the titles of properties which my second eldest sister does not like to give us? What kind of criminal charges can we file against her? I am hoping you can advise us. Respectfully yours, BPMartinez Dear BPMartinez, We are saddened by the fact that even if your father is still living, the issue of inheritance is already being brought up in your family. Initially, we enjoin you to have a one-on-one talk with your older sister and explain to her that all of you have rights to the properties to be left by your father upon his demise. All of you are compulsory heirs and are entitled to receive legitime (Articles 888 Article 886, New Civil Code). However, if after talking to her, she remained steadfast in her desire to keep the titles of the property, you and your other siblings can still go after the said properties as long as they are indeed part of the estate of your father. You may ascertain if those properties are still in the name of your father by going to the Register of Deeds where the said properties were registered and request for the certified true copies of those titles. The refusal of your older sister to produce the titles of the properties of your father will not affect your right and that of your other siblings to inherit from your father. Upon the death of your father, his property, rights and obligations to the extent of the value of the inheritance are transmitted to all his heirs. This is in consonance with our law on succession which provides that the rights to the succession are transmitted from the moment of the death of the decedent (Article 777, New Civil Code). Succession is a mode of acquisition by virtue of which the property, rights and obligations to the extent of the value of the inheritance, of a person are transmitted through his death to another or others either by his will or by operation of law (Article 774, New Civil Code). Thus, after the death of your father, if your sister still refuses to deliver the titles which we take to mean that she does not want to settle the estate of your father extra judicially, you and your other siblings may file a Petition for the Allowance of the Last Will and Testament of your father considering that one was already executed. In the same proceedings, you may allege in the petition the fact that the titles of the properties of your father is in the custody of your older sister and pray before the court to issue an order to compel your sister to produce the said titles before the court in accordance with Section 3, Rule 73 of the Rules of Court which provides, to wit:

SEC. 3. Process.In the exercise of probate jurisdiction, Regional Trial Court may issue warrants and process necessary to compel the attendance of witnesses or to carry into effect their orders and judgments, and all other powers granted them by law. If a person does not perform an order or judgment rendered by a court in the exercise of its probate jurisdiction, it may issue a warrant for the apprehension and imprisonment of such person until he performs such order or judgment, or is released. We hope that we were able to enlighten you on the matter. Please take note however, that all the information contained herein are based on our appreciation of the facts you have given and on the assumptions we made. A different legal opinion may be given if other facts not included in your query will be discussed. Editors note: Dear PAO is a daily column of the Public Attorneys Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net.

Depriving financial support to mother, child is an act of violence

Published : Saturday, November 05, 2011 00:00 Article Views : 987 Written by : PERSIDA ACOSTA Dear PAO, Greetings! I am so depressed and was thinking lately on how I can change my 2-year-old sons surname to mine. I am a 26-year-old single mom, not married and abandoned for a year now. My son is using his fathers last name and his father is not giving any financial support and would not even call to ask how my son is. We separated last July 10, 2010 after the celebration of the 1st birthday of my son. After the party, he abandoned us. I want him to give a monthly support. I want to file a case against him. Is the law on anti-violence against women and children applicable? Is there anything else? And the most important thing for me is the change of my sons surname to mine. I have an offer to work abroad and I cant leave my son here so I need to fix his surname in order that the company will facilitate my sons visa. What are the things that I should do? Thanks and more power! Hoping you can help me clear my mind. Princess Diane Dear Princess Diane, After the great flood, man was commanded to go forth, be fertile, multiply and fill the earth. Others did not heed the sequence of this command because they multiply first and then go (Artemio G. Ilano vs. Court of Appeals and Merceditas S. Ilano, 230 SCRA 242). Apparently,

the alleged father of your son is one of those who did not follow the command since after bearing a child with you, he left you and your son empty-handed. Now, you want to file a case against him for not giving support for your son and for abandoning you and your son. Section 5 (e) (2) of Republic Act No. 9262 or otherwise known as the Anti-Violence Against Women and Their Children Act of 2004 provides, to wit: SECTION 5. Acts of Violence Against Women and Their Children.- The crime of violence against women and their children is committed through any of the following acts: Xxx (e) Attempting to compel or compelling the woman or her child to engage in conduct which the woman or her child has the right to desist from or desist from conduct which the woman or her child has the right to engage in, or attempting to restrict or restricting the womans or her childs freedom of movement or conduct by force or threat of force, physical or other harm or threat of physical or other harm, or intimidation directed against the woman or child. This shall include, but not limited to, the following acts committed with the purpose or effect of controlling or restricting the womans or her childs movement or conduct: Xxx (2) Depriving or threatening to deprive the woman or her children of financial support legally due her or her family, or deliberately providing the womans children insufficient financial support; Xxx (i) Causing mental or emotional anguish, public ridicule or humiliation to the woman or her child, including, but not limited to, repeated verbal and emotional abuse, and denial of financial support or custody of minor children of access to the womans child/children. Thus, the failure of the alleged father to provide financial support to your son is a valid ground to sue him for violation of the said law. The said case is a criminal case which may lead to the imprisonment of the father of your son once you have proved beyond reasonable doubt his violation of the said law. In addition to this, you may also file a civil case for Support against the father of your son since under Article 195 of the Family Code, parents have the obligation to provide support to their illegitimate children, to wit: Article 195. Subject to the provisions of the succeeding articles, the following are obliged to support each other to the whole extent set forth in the preceding article: xxx

4.) Parents and their illegitimate children and the legitimate and illegitimate children of the latter; and x x x However, with respect to your query as to the possibility of changing the surname of your son to yours, we would like to apprise you that changing ones surname is not a matter of right. Under Article 376 of the New Civil Code, it is provided that no person can change his name or surname without judicial authority. Thus, to change the surname of your son, you will need judicial approval to effect the same. A Petition for Change of Name under Rule 103 of the Rules of Court must be filed before the proper court. Rule 103 is the law that prescribes the procedure in changing name, may it be the surname or the given name of a person. The petition should be based on a ground recognized by the courts sufficient enough to justify the change. In one case, the Supreme Court has specified some of the recognized grounds for the allowance of a petition for change of name, to wit: (a) when the name is ridiculous, dishonorable or extremely difficult to write or pronounce; (b) when the change results as a legal consequence, as in legitimation; (c) when the change will avoid confusion; (d) when one has continuously used and been known since childhood by a Filipino name, and was aware of alien parentage; (e) a sincere desire to adopt a Filipino name to erase signs to former alienage, all in good faith and without prejudicing anybody; and (f) when the surname causes embarrassment and there is no showing that the desired change of name was for a fraudulent purpose or that the desired change of name would prejudice public interest. It bears stressing that the courts do not exactly favor the act of parents of filing in behalf of their minor children the petition for the change of name of the latter for being premature, unless, as already mentioned, there is a compelling reason for it. In the case of Republic of the Philippines versus Hon. Pio R. Marcos, et.al. (G.R. No. L-31065, February 15, 1990), the High Court explained the reason in this wise: (a)nother factor to be reckoned with is the fact that the child concerned is still a minor who for the present cannot fathom what would be his feeling when he comes to mature age. Any way, if the time comes, he may decide the matter for himself and take such action as our law may permit. Apparently, the court seeks to protect and preserve the right of the minor child to choose for himself/herself when the time comes what surname he/she would want to use. The court does not want the parents to prematurely encroach upon the decision, which rightly belongs to their child. After all, it is the child who will use that name and no other, then the decision to change or retain it, as the case may be, should be his alone. Thus, if you are to file the petition for change of name of your sons surname at the present time, the court shall decide whether or not the ground that you will allege in the petition is sufficient to warrant the change of your sons surname. Otherwise, it may rule to deny your petition and give the right to change the surname to your son upon reaching the age of majority.

We hope we were able to enlighten you on the matter. Please take note however, that all the information contained herein are based on our appreciation of your questions. A different legal opinion may be given if other facts not included in your query will be discussed. Editors note: Dear PAO is a daily column of the Public Attorneys Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net.

Conjugal property becomes common property

Published : Friday, November 04, 2011 00:00 Article Views : 1,192 Written by : PERSIDA ACOSTA Dear PAO, Greetings of Peace! My mother who is already a widow has 9 heirs. My mom wants to donate one (1) of her real properties in Cavite to me and my three (3) sisters. But my mother does not want me to inform my 5 other siblings about it. She told the 4 of us that the rest will follow if legal documentation for the deed of donation has been completed and the title has been transferred to our name. My mother has other real properties and some of my siblings live there with my mother. I have sought legal advice and the lawyer told me that a deed of donation can be executed even with 1 heir and 1 not related person who personally know my mother to be a witness. I have learned lately from a friend who is a land surveyor that since my father is deceased already, my mother and the rest of my siblings should sign as donors. Which is which? Is it legal and acceptable in law if the deed of donation was signed only by my mother and the four (4) of us as donees and witnesses? Hoping for your kind consideration and swift response to the above concern. We are grateful that we have you and your staff in our government. Thank you. More power! Rperez Dear Rperez, In order for us to squarely address your queries, it is important to determine the nature of the real property which your mother desires to donate to you and your three (3) siblings. If the said property is a paraphernalia or an exclusive property of your mother, then she alone can donate the subject real property to you and your three siblings without the need of the consent from your other siblings. Your mother alone has to sign the Deed of Donation. But be reminded that the said donation will be considered as your and your three (3) siblings legitime in accordance with Article 909 of the New Civil Code which provides, to wit:

Art. 909. Donations given to children shall be charged to their legitime. X x x And upon the death of your mother, the said real property will be brought to the mass of the estate of your mother for the determination of the legitime of all her heirs which include you and your 8 siblings unless your mother should expressly provide otherwise. This is in accordance with Articles 1061 and 1062 of the New Civil Code which provides, to wit: Art. 1061. Every compulsory heir, who succeeds with other compulsory heirs, must bring into the mass of the estate any property or right which he may have received from the decedent, during the lifetime of the latter, by way of donation, or any other gratuitous title, in order that it may be computed in the determination of the legitime of each heir, and in the account of the partition. Art. 1062. Collation shall not take place among compulsory heirs if the donor should have so expressly provided, or if the donee should repudiate the inheritance, unless the donation should be reduced as inofficious. On the other hand, if the said property is a common property of your mother and father, then the said real property, after your fathers death, becomes your common property with your mother and your other siblings. One half of the said property belongs to your mother alone as her share in the common property and the other half is to be divided among all of you who are heirs of your father and that includes you and your mother, and your 8 siblings. Being considered as coowners, if your mother wants to donate the said real property to you and your 3 siblings, your 5 other siblings should also sign as donors in the Deed of Donation. By doing so, your 5 other siblings are waiving their rights to the said real property. At this juncture, it would be prudent for you to check the real owner of the involved property in order for you to determine the action which your mother has to undertake in order to donate the said real property to you and your 3 siblings. We hope that we were able to enlighten you on the matter. Please take note however, that all the information contained herein are based on our appreciation of your question and on the assumptions we made. A different legal opinion may be given if other facts not included in your query will be discussed. Editors note: Dear PAO is a daily column of the Public Attorneys Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net.

Donors intention controls property disposition

Published : Thursday, November 03, 2011 00:00 Article Views : 1,004 Written by : PERSIDA ACOSTA

Dear PAO, First of all, I am an avid reader of your column and I just want to congratulate you of your splendid service to the community by guiding and educating your readers on a range of family issues, legal problem, etc. Long live PAO! My question is this: Published on Sunday, August 14, 2011: Deed of Donation does not expire, unless annulled by competent court. Published on Wednesday, August 24, 2011: Holographic will written in ones hand is legal, valid. Now, if the two documents were executed in accordance with the rules of Philippine law, with the same intent as disposition of a persons estate and involving the same parties (donor and donee or giver and receiver), but bearing different execution dates, which one supersedes the other? I happen to be a Filipino by nationality and an American by citizenship. Thank you very much. Frank Dear Frank, Thank you very much for your support to Dear PAO and The Manila Times. We are happy and honored to be of help to you, Frank, and the rest of our readers. Assuming that the Deed of Donation and the Holographic Will deal with the same properties of the transferor and both were already executed by him, we would like to apprise you that it is not the date of execution of the Deed of Donation or of the Holographic Will that will determine which of the two instruments prevails. It is the intention of the transferor (be it the donor or testator) who is giving his properties to the donee or heir/beneficiary/legatee/devisee that is controlling. Generally speaking, a deed of donation and a holographic will are instruments causing the disposition of properties of one person to another. For the purpose of addressing your query, we deem it necessary to discuss the distinctions between the two instruments, to wit: 1. In a deed of donation, the donation is to take effect during the lifetime of the donor while in a holographic will, the provisions therein take effect only upon the death of the testator; 2. In a deed of donation, the title or ownership of a property is conveyed before the death of the donor while in a holographic will, the title or ownership is conveyed only upon the death of the testator; 3. Generally, in a deed of donation, the donation once accepted by the donee is irrevocable during the lifetime of the donor while the provisions in a holographic will can always be revoked by executing a new holographic will; and 4. A deed of donation must comply with the formalities prescribed by Articles 748 and 749 of

the New Civil Code while a holographic will must comply with the formalities prescribed by Article 810 of the same Code. Taking into consideration the foregoing with the assumption that the same properties are included in the Deed of Donation and in the Holographic Will, we may say that if the intention of the transferor is to transfer ownership of his properties during his lifetime, then a Deed of Donation will prevail over the Holographic Will. This is because as we already discussed the provisions of the Holographic Will will take effect only upon the death of the transferor. On the contrary, if the intention of the transferor is to transfer ownership of his properties only after his death, then the Holographic Will prevails especially so when the same has complied with the formalities prescribed by law. We hope that we were able to enlighten you on the matter. Please take note however, that all the information contained herein are based on our appreciation of the facts you provided us with. A different legal opinion may be given if other facts not included in your query will be discussed. Editors note: Dear PAO is a daily column of the Public Attorneys Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net.

Legitimation processed at local civil registry

Published : Wednesday, November 02, 2011 00:00 Article Views : 965 Written by : PERSIDA ACOSTA Dear PAO, My wife gave birth to our first baby in 2002 and we got married by 2003. The surname in my childs birth certificate is my wifes since we were not yet married that time. May I ask the procedure for legitimation in order for my son to carry my last name? Which department of the government should I go to? What documents do I need to produce for such application? Do I need a lawyer for the process? How much would it cost me? How long would the process take? My child was born in Manila. We are also residing there. James Dear James, Legitimation is a means whereby children born out of wedlock and should therefore, be considered illegitimate, are, by fiction, considered legitimate, by the subsequent marriage of their parents who, at the time of the conception of the former, were not disqualified by any impediment to marry each other (Article 177, Family Code of the Philippines). Registration for legitimation is processed at the Local Civil Registry (LRC) of Manila, where your child was born. According to Rule 66, National Statistics Order Administrative No. 1-93, you should present before the said office the following documents:

a) Certificate of Marriage; b) Certificate of Live Birth of the child; c) Acknowledgement (not required for illegitimate children born on or after 3 August 1988); d) Affidavit of legitimation executed by both parents which shall contain the following facts: i. the names of the parents; ii. that at the time when the child was conceived, the aforesaid parents could have contracted marriage, and that they subsequently contracted marriage; iii. the date and place when such marriage was solemnized; iv. the name of the officer who officiated the marriage; v. the city or municipality where such marriage was recorded; vi. the name of the child to be legitimated, and the other facts of birth; vii. the date and place where the birth of the child was registered ; and viii. the manner by which the child was acknowledged by the parents which may be in the childs record of birth, in a will, a statement before a court of record, or in any authentic writing (not required for illegitimate children born on or after 3 August 1988). Since your child was born in Manila, it is required for you to submit at least two of the following documents in case your name does not appear at the birth certificate of the child: 1. SSS E-1 or E-4 of the father where the child is declared as beneficiary; 2. GSIS of the father where the child is declared as beneficiary; 3. Income Tax Return of the father where the child is declared as beneficiary; 4. Philhealth of the father where the child is declared as beneficiary; 5. Insurance of parents where the child is declared as beneficiary; 6. Report card and Form 137 of the child wherein the name of the father is declared or the signature of the father is affixed at the card; 7. Statement of Assets and Liabilities.

You do not need the assistance of a lawyer in the registration of legitimation of your child at the LCR. However, you may need a lawyer for the notary of the required affidavit. As to the cost and the duration of the process, we suggest that you visit the LCR of Manila so you can be enlightened as to this matter. Please be reminded that the above legal opinion is solely based on our appreciation of the problem that you have stated. The opinion may vary when other facts are elaborated. Editors note: Dear PAO is a daily column of the Public Attorneys Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net.

File action in court for change of childs name

Published : Tuesday, November 01, 2011 00:00 Article Views : 937 Written by : Persida Acosta Dear PAO, My question is regarding my twins last name. Their father, who is an Indian, and I are not married, but he signed their birth certificates to acknowledge that he is the father of my children. At the time he affixed his signature, the birth certificates were not yet filled-up. We merely gave the information needed to the hospital, which wrote such information at the certificates and submitted the same at the city hall for registration. When we got the certificates, my childrens father informed me that our children should be having his first name as their last name followed to Indian custom and tradition. He said that his first name is his surname or family name. Is there any possibility that I can still change my childrens last name? How do we do it? Iss C. Dear Iss C, An illegitimate child shall use the surname of the mother (Article 176 of the Family Code). However if the child has been acknowledged by the father, he may use the surname of said father in accordance with R.A. 9255, entitled An Act Allowing Illegitimate Children to Use the Surname of their Father, Amending for the purpose Article 176 of Executive Order No. 209, Otherwise known as the Family Code of the Philippines. You have mentioned that there was a mistake in the surname of your children because the name written in their birth certificates is the last name of their father. According to you, following the Indian tradition, the surname of your children should be the first name of the father since it is his family name. In order to correct the mistake, it is necessary to file the appropriate action for change of name in court. The mistake cannot be corrected merely by the local civil registrar because it is not a typographical error under R.A. 9048 (An Act Authorizing the City or Municipal Registrar or the Consul General to Correct a Clerical or Typographical Error in an Entry and/or Change of First Name or Nickname in the Civil Register without the need of Judicial Order, Amending for this purpose Articles 376 and 412 of the Civil Code of the Philippines). A typographical error refers to a mistake committed in the performance of clerical

work in writing, copying, transcribing or typing an entry in the civil register that is harmless and innocuous, such as misspelled name or misspelled place of birth or the like, which is visible to the eyes or obvious to the understanding, and can be corrected or changed only by reference to other existing record or records. The local civil registrar might not be aware of the Indian tradition that their first name is their surname or family name. It is not for the local civil registrar to know this matter since in the Philippines a child born uses the last name of his father, which is his surname or family name. Clearly, it is not a mistake that is visible to the eyes or obvious to the understanding of the local civil registrar and therefore cannot be corrected administratively or without judicial action. Please be reminded that the above legal opinion is solely based on our appreciation of the problem that you have stated. The opinion may vary when other facts are elaborated. Editors note: Dear PAO is a daily column of the Public Attorneys Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net. Woman wants to revert to using maiden name Published : Monday, October 31, 2011 00:00 Article Views : 1,047 Written by : PERSIDA ACOSTA Dear PAO, Hi! I have read two articles of your column from the papers. I am in Taiwan right now and I have some query and this is quite important. My query is about how to change my last name back to my maiden name. My legal husband and I have been separated for almost four years now. We havent been together since then literally in one house. We have communication because we have a son who is 5 years old. I had changed my status from single to married right after our marriage. But there are just some things that cannot be mended anymore. I just want to have my own name back and be a single mom. Do I still need to file for annulment? I have heard that if the couple has no communication within five years or so, it will automatically be a good reason for the said marriage to be void. Please advise me on these matters. I hope you can provide me with measures on how to get my last name changed. Thank you so much. More Power! Ermalyn Dear Ermalyn, The applicable law in your case is Article 370 of the New Civil Code of the Philippines which provides, to wit: Article 370. A married woman may use: 1. Her maiden first name and surname and add her husbands surname, or 2. Her maiden first name and her husbands surname, or

3. Her husbands full name, but prefixing a word indicating that she is his wife, such as Mrs. In interpreting the above-quoted provision, the Supreme Court ruled in the case of Yasin vs. Judge, Sharia District Court (241 SCRA 606) that the use of the husbands surname during the marriage (Art. 370, Civil Code), after annulment of the marriage (Art. 371, Civil Code) and after the death of the husband (Art. 373, Civil Code) is PERMISSIVE and not obligatory except in case of legal separation (Art. 372. Civil Code). in the same case, the High Court declared that when a woman marries a man, she need not apply and/or seek judicial authority to use her husbands name by prefixing the word Mrs. before her husbands full name or by adding her husbands surname to her maiden first name. The law grants her such right (Art. 370, Civil Code). It stated further that when petitioner married her husband, she did not change her name but only her civil status. Neither was she required to secure judicial authority to use the surname of her husband after marriage as no law requires it. Thus, being not legally separated from your husband, you may opt to use your maiden name and surname without the need of securing for judicial authority to do the same. Neither do you have to file an annulment just to use your maiden name and surname. It would, however, be different if there is a judicial decree of legal separation between you and your husband, for in such a case, the applicable law is Article 372 of the New Civil Code which provides that when legal separation has been granted, the wife shall continue using her name and surname employed before the legal separation. At this juncture, we would like to correct your misconception that if the couple has no communication within five years or so, it will automatically be a good reason for the said marriage to be void. Our laws have categorically enumerated the marriages which are considered void. These can be found in Articles 35, 36, 37 and 38 of the Family Code of the Philippines. No communication for however long between spouses is not among those enumerated and the same never renders a marriage void. We hope we were able to enlighten you on the matter. Please take note however, that all the information contained herein are based on our appreciation of your questions. A different legal opinion may be given if other facts not included in your query will be discussed. Editors note: Dear PAO is a daily column of the Public Attorneys Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net.

Petition RTC for correction of entry in birth certificate

Published : Sunday, October 30, 2011 00:00 Article Views : 1,055 Written by : PERSIDA ACOSTA

Dear PAO, When we received the NSO authenticated birth certificate of my brother, we noticed the gender part where it was written that he is a female. We checked this clerical error at the local civil registry in Tarlac. They told us that this matter is not covered by R.A. 9048 and advised us to file a court petition which cost us Php20,000.00. Considering this type of clerical error, is there a new law that will save us from filing a court petition? Hope you can help us. Thank you very much. Rhea Dear Rhea, To start with, we would like you to understand that under Section 2(3), Republic Act 9048 (An Act Authorizing The City Or Municipal Civil Registrar Or The Consul General To Correct A Clerical Or Typographical Error In An Entry And/Or Change Of First Name Or Nickname In The Civil Register Without Need Of A Judicial Order), clerical or typographical error refers to a mistake committed in the performance of clerical work in writing, copying, transcribing or typing an entry in the civil register that is harmless and innocuous, such as misspelled name or misspelled place of birth or the like, which is visible to the eyes or obvious to the understanding, and can be corrected or changed only by reference to other existing record or records: provided, however, that no correction must involve the change of nationality, age, status or sex of the petitioner. Evidently, your brother cannot ask for the correction of the entry in his birth certificate in relation to his gender pursuant to R.A. 9048 because the same is not covered by the said law. That being the case and considering that no entry in a civil register can be changed or corrected without judicial order (Article 412, New Civil Code), the only remedy of your brother is to file a Petition for Correction of Entry under Rule 108 of the Revised Rules of Court. The said petition should be verified and filed before the Regional Trial Court of the province where the local civil registry in which his birth was registered is located in accordance with Section 1, Rule 108, to wit: Section 1. Who may file petition. Any person interested in any act, event, order or decree concerning the civil status of persons which has been recorded in the civil register, may file a verified petition for the cancellation or correction of an entry relating thereto, with the Regional Trial Court of the province where the corresponding civil registry is located. The courts role in hearing the petition to correct certain entry in the civil registry is to ascertain the truth about the facts recorded therein. Under our system of administering justice, truth is best ascertained or approximated by trial conducted under adversary system (Remedial Law, 1996 Edition, p. 378, J. Oscar M. Herrera citing Chiao Ben Lim Vs. Zosa, December 29, 1986). In this regard, there is a need for your brother to file the abovementioned petition before the court for the latter to ascertain his true gender in the course of the trial. He has to present

evidence that he is a male. The pieces of evidence to be presented should warrant a correction to be made in his birth certificate. It is worth mentioning that the civil registrar and all other persons who have or claim any interest which would be affected thereby shall be made parties to the proceeding. Furthermore, publication of the petition is required so as to apprise the public and to give any person having or claiming any interest under the entry whose correction is sought may file his opposition thereto. Section 4, Rule 108 of the Rules of Court, provides: Section 4. Notice and Publication. Upon the filing of the petition, the court shall, by an order, fix the time and place for the hearing of the same, and cause reasonable notice thereof to be given to the persons named in the petition. The court shall also cause the order to be published once a week for three (3) consecutive weeks in a newspaper of general circulation in the province. After the hearing, the court may either dismiss the petition or issue an order granting the same. The judgment of the court shall be served upon the civil registrar concerned and the latter to cause the changes as directed therein. The accomplishment of the abovementioned procedure would entail the services of a lawyer. If your brother cannot afford the services of a lawyer, he may proceed to our Regional or District Office which is usually located in the Hall of Justice or City or Municipal Hall of a town. Our office can extend free legal assistance to him in filing the petition, including exemption from the payment of court fees incidental to the filing of the case if he is qualified as an indigent. Please be reminded however that your brother will shoulder the expenses for the publication. We hope we were able to enlighten you on the matter. Please take note however, that all the information contained herein are based on our appreciation of your questions. A different legal opinion may be given if other facts not included in your query will be discussed. Editors note: Dear PAO is a daily column of the Public Attorneys Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net.

Petition RTC for correction of entry in birth certificate

Published : Sunday, October 30, 2011 00:00 Article Views : 1,055 Written by : PERSIDA ACOSTA Dear PAO, When we received the NSO authenticated birth certificate of my brother, we noticed the gender part where it was written that he is a female. We checked this clerical error at the local civil registry in Tarlac. They told us that this matter is not covered by R.A. 9048 and advised us to file a court petition which cost us Php20,000.00. Considering this type of clerical error, is there a new law that will save us from filing a court petition? Hope you can help us. Thank you very

much. Rhea Dear Rhea, To start with, we would like you to understand that under Section 2(3), Republic Act 9048 (An Act Authorizing The City Or Municipal Civil Registrar Or The Consul General To Correct A Clerical Or Typographical Error In An Entry And/Or Change Of First Name Or Nickname In The Civil Register Without Need Of A Judicial Order), clerical or typographical error refers to a mistake committed in the performance of clerical work in writing, copying, transcribing or typing an entry in the civil register that is harmless and innocuous, such as misspelled name or misspelled place of birth or the like, which is visible to the eyes or obvious to the understanding, and can be corrected or changed only by reference to other existing record or records: provided, however, that no correction must involve the change of nationality, age, status or sex of the petitioner. Evidently, your brother cannot ask for the correction of the entry in his birth certificate in relation to his gender pursuant to R.A. 9048 because the same is not covered by the said law. That being the case and considering that no entry in a civil register can be changed or corrected without judicial order (Article 412, New Civil Code), the only remedy of your brother is to file a Petition for Correction of Entry under Rule 108 of the Revised Rules of Court. The said petition should be verified and filed before the Regional Trial Court of the province where the local civil registry in which his birth was registered is located in accordance with Section 1, Rule 108, to wit: Section 1. Who may file petition. Any person interested in any act, event, order or decree concerning the civil status of persons which has been recorded in the civil register, may file a verified petition for the cancellation or correction of an entry relating thereto, with the Regional Trial Court of the province where the corresponding civil registry is located. The courts role in hearing the petition to correct certain entry in the civil registry is to ascertain the truth about the facts recorded therein. Under our system of administering justice, truth is best ascertained or approximated by trial conducted under adversary system (Remedial Law, 1996 Edition, p. 378, J. Oscar M. Herrera citing Chiao Ben Lim Vs. Zosa, December 29, 1986). In this regard, there is a need for your brother to file the abovementioned petition before the court for the latter to ascertain his true gender in the course of the trial. He has to present evidence that he is a male. The pieces of evidence to be presented should warrant a correction to be made in his birth certificate. It is worth mentioning that the civil registrar and all other persons who have or claim any interest which would be affected thereby shall be made parties to the proceeding. Furthermore, publication of the petition is required so as to apprise the public and to give any person having or claiming any interest under the entry whose correction is sought may file his

opposition thereto. Section 4, Rule 108 of the Rules of Court, provides: Section 4. Notice and Publication. Upon the filing of the petition, the court shall, by an order, fix the time and place for the hearing of the same, and cause reasonable notice thereof to be given to the persons named in the petition. The court shall also cause the order to be published once a week for three (3) consecutive weeks in a newspaper of general circulation in the province. After the hearing, the court may either dismiss the petition or issue an order granting the same. The judgment of the court shall be served upon the civil registrar concerned and the latter to cause the changes as directed therein. The accomplishment of the abovementioned procedure would entail the services of a lawyer. If your brother cannot afford the services of a lawyer, he may proceed to our Regional or District Office which is usually located in the Hall of Justice or City or Municipal Hall of a town. Our office can extend free legal assistance to him in filing the petition, including exemption from the payment of court fees incidental to the filing of the case if he is qualified as an indigent. Please be reminded however that your brother will shoulder the expenses for the publication. We hope we were able to enlighten you on the matter. Please take note however, that all the information contained herein are based on our appreciation of your questions. A different legal opinion may be given if other facts not included in your query will be discussed. Editors note: Dear PAO is a daily column of the Public Attorneys Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net.

More than a months advance rent illegal

Published : Friday, October 28, 2011 00:00 Article Views : 1,436 Written by : Persida Acosta Dear PAO, I am planning to rent a small apartment in Caloocan City. The monthly rent of P6,500.00 is okay with me but the owner of the apartment wants us to make a three-month deposit and a two-month advance which if you sum up, is quite a big sum. Is this legal? Ms. Virgo25 Dear Ms. Virgo25, The law applicable in your question is Republic Act No. 9653 or the Rent Control Act of 2009. This law regulates the rent of residential units which shall refer to an apartment, house and/or land on which another dwelling is located and used for residential purposes and shall include not only buildings, part or units thereof used solely as dwelling places, boarding houses, dormitories, rooms and bedspaces offered for rent by the owners, except motels, motel rooms, hotels, hotel rooms, but also those used for home industries, retail stores or other business purposes if the owner thereof and his or her family actually live therein and use it for dwelling purposes (Sec. 3(b), RA 9653). It covers residential units in the National Capital Region and other highly

urbanized cities where the total monthly rent ranges from one peso (P1.00) to ten thousand pesos (P10,000.00), and all residential units in other areas where the total monthly rent ranges from one peso (P1.00) to five thousand pesos (P5,000.00), without prejudice to existing contracts (Section 5, ibid.). The apartment which you are planning to rent is among the residential units contemplated by the rent control law. Accordingly, its owner is mandated to strictly follow its regulatory provisions, particularly the provision on deposits. Section 7 thereof provides: SEC. 7. Rent and Requirement of Bank Deposit. xxx The lessor cannot demand more than one (1) month advance rent. Neither can he/she demand more than two (2) months deposit which shall be kept in a bank under the lessors account name during the entire duration of the lease agreement. Any and all interest that shall accrue therein shall be returned to the lessee at the expiration of the lease contract. In the event however, that the lessee fails to settle rent, electric, telephone, water or such other utility bills or destroys any house components and accessories, the deposits and interests therein shall be forfeited in favor of the latter in the amount commensurate to the pecuniary damage done by the former.(emphasis supplied) Hence, it is clear from the foregoing that the two-month advance and the three-month deposit which your prospective lessor is asking more than what our rent law mandates, and is thus, illegal. Finally, we wish to remind you that this opinion is solely based on your narration of facts and our appreciation of the same. The opinion may vary if other facts are added or elaborated. We hope that we were able to address your concern. Editors note: Dear PAO is a daily column of the Public Attorneys Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net.

More than a months advance rent illegal

Published : Friday, October 28, 2011 00:00 Article Views : 1,436 Written by : Persida Acosta Dear PAO, I am planning to rent a small apartment in Caloocan City. The monthly rent of P6,500.00 is okay with me but the owner of the apartment wants us to make a three-month deposit and a two-month advance which if you sum up, is quite a big sum. Is this legal? Ms. Virgo25 Dear Ms. Virgo25, The law applicable in your question is Republic Act No. 9653 or the Rent Control Act of 2009. This law regulates the rent of residential units which shall refer to an apartment, house and/or land on which another dwelling is located and used for residential purposes and shall include not only buildings, part or units thereof used solely as dwelling places, boarding houses, dormitories, rooms and bedspaces offered for rent by the owners, except motels, motel rooms, hotels, hotel

rooms, but also those used for home industries, retail stores or other business purposes if the owner thereof and his or her family actually live therein and use it for dwelling purposes (Sec. 3(b), RA 9653). It covers residential units in the National Capital Region and other highly urbanized cities where the total monthly rent ranges from one peso (P1.00) to ten thousand pesos (P10,000.00), and all residential units in other areas where the total monthly rent ranges from one peso (P1.00) to five thousand pesos (P5,000.00), without prejudice to existing contracts (Section 5, ibid.). The apartment which you are planning to rent is among the residential units contemplated by the rent control law. Accordingly, its owner is mandated to strictly follow its regulatory provisions, particularly the provision on deposits. Section 7 thereof provides: SEC. 7. Rent and Requirement of Bank Deposit. xxx The lessor cannot demand more than one (1) month advance rent. Neither can he/she demand more than two (2) months deposit which shall be kept in a bank under the lessors account name during the entire duration of the lease agreement. Any and all interest that shall accrue therein shall be returned to the lessee at the expiration of the lease contract. In the event however, that the lessee fails to settle rent, electric, telephone, water or such other utility bills or destroys any house components and accessories, the deposits and interests therein shall be forfeited in favor of the latter in the amount commensurate to the pecuniary damage done by the former.(emphasis supplied) Hence, it is clear from the foregoing that the two-month advance and the three-month deposit which your prospective lessor is asking more than what our rent law mandates, and is thus, illegal. Finally, we wish to remind you that this opinion is solely based on your narration of facts and our appreciation of the same. The opinion may vary if other facts are added or elaborated. We hope that we were able to address your concern. Editors note: Dear PAO is a daily column of the Public Attorneys Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net.

Spouses death ends property relation

Published : Wednesday, October 26, 2011 00:00 Article Views : 1,418 Written by : PERSIDA ACOSTA Dear PAO, I just want to ask about conjugal properties. I have a friend whose father married another woman when her mother died. She wants to know if the second wife has the right or share with the partition of their house. I am so grateful if you will answer our query. Julia Dear Julia, Before we answer your question, we will presume that your friends parents were married when

the Family Code of the Philippines was already in force and that there was no pre-nuptial agreement that was executed between them. Thus, their property relation is absolute community property. Likewise, we will presume that their properties are not yet partitioned and distributed to the heirs of your friends mother. Under the law, the property relation of spouses shall terminate from the moment anyone of them dies. Their properties should be liquidated within one year from said period otherwise encumbrances or dispositions made involving the conjugal property shall be void. Likewise, should the surviving spouse contracts a subsequent marriage before the said liquidation is done within the said period, a complete separation of property shall govern their property relation. This is provided under Article 103 of the Family Code of the Philippines as follows: Art. 103. Upon the termination of the marriage by death, the community property shall be liquidated in the same proceeding for the settlement of the estate of the deceased. If no judicial settlement proceeding is instituted, the surviving spouse shall liquidate the community property either judicially or extra-judicially within one year from the death of the deceased spouse. If upon the lapse of the one year period, no liquidation is made, any disposition or encumbrance involving the community property of the terminated marriage shall be void. Should the surviving spouse contract a subsequent marriage without compliance with the foregoing requirements, a mandatory regime of complete separation of property shall govern the property relations of the subsequent marriage. Applying the foregoing to the situation of your friend, if the house mentioned in your letter belongs to the absolute community property of your friends parents, then the second wife of her father has no right whatsoever over the same. The house shall be divided or partitioned among the heirs of your friends mother. Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated. We hope that we were able to guide you with our opinion on the matter. Editors note: Dear PAO is a daily column of the Public Attorneys Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net.

Marriage exists despite long separation

Published : Tuesday, October 25, 2011 00:00 Article Views : 1,689 Written by : Persida Acosta Dear PAO, My husband and I have been separated for 20 years. I just found out lately that he married

another woman 2 years after our separation. Is our marriage still valid considering the long period of time of our being separated from each other? Can I still file a bigamy case against him? Hermie Dear Hermie, A marriage does not cease to exist just because the spouses have been separated de facto for so long a time. Separation is not a ground under the law for a marriage to be declared null and void nor invalidate a valid and existing one. Thus, neither spouse can remarry without going to court praying for the annulment of their marriage or declaration of its nullity. In your situation, being separated for 20 years does not make your marriage null and void. As such, your husband cannot validly remarry another unless he was able to obtain a court decision either annulling your marriage with him, declaring said marriage null and void or declaring your presumptive death. If he fails to get any of such court decisions, then his marriage with another woman is null and void. Under the Family Code of the Philippines, a marriage is null and void if one or both of the parties to it are married to another. The Family Code of the Philippines provides: Art. 35. The following marriages shall be void from the beginning: xxx (4) Those bigamous or polygamous marriages not failing under Article 41; xxx Art. 41. A marriage contracted by any person during subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present has a well-founded belief that the absent spouse was already dead. In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient. Likewise, a party entering into another marriage during the existence of his/her valid marriage makes him/her liable for the crime of bigamy. Article 349 of the Revised Penal Code of the Philippines provides: Art. 349. Bigamy. The penalty of prision mayor shall be imposed upon any person who shall contract a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings. Although the aforesaid offense prescribes in fifteen years according to Article 90 of the Revised Penal Code of the Philippines, the said period shall commence to run from the time the same was discovered by the offended party. Thus, in your case, even if the remarriage of your husband, assuming that he was not able to obtain a court decision such as those mentioned above, was celebrated more that 15 years ago, the same may still be filed in court. Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or

elaborated. We hope that we were able to guide you with our opinion on the matter. Editors note: Dear PAO is a daily column of the Public Attorneys Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net.

Inheriting intestate from late aunts

Published : Monday, October 24, 2011 00:00 Article Views : 1,197 Written by : PERSIDA ACOSTA Dear PAO, My late father has two sisters who are unmarried and without children. Both of them are now dead, leaving some properties with no will. My question is, do the illegitimate children of my late father have a share of the said pieces of property? If ever, how much? Niece Dear Niece, Since there is no last will and testament that was executed by your two aunts, the law on intestate succession shall govern the distribution/partition of their estates. This is in accordance with Article 960 of the New Civil Code of the Philippines, which provides as follows: Art. 960. Legal or intestate succession takes place: (1) If a person dies without a will, or with a void will, or one which has subsequently lost its validity; xxx Also, according to the said law, if a deceased person died without descendants or ascendants or a surviving spouse, his collateral relatives shall inherit from him. This is particularly provided under Article 1003 of the New Civil Code of the Philippines, to wit: Art. 1003. If there are no descendants, ascendants, illegitimate children, or a surviving spouse, the collateral relatives shall succeed to the entire estate of the deceased in accordance with the following articles. Applying the aforesaid provisions of the law to the situation of your deceased aunts, if you are their only surviving relative you alone shall inherit their entire estates. Insofar as the illegitimate children of your deceased father are concerned, they have no right to inherit from your aunts. This is because in the absence of a valid last will and testament, the law prohibits them to inherit from the legitimate relatives of your father. Article 992 of the New Civil Code of the Philippines provides: Art. 992. An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother; nor shall such children or relatives inherit in the same

manner from the illegitimate child. Thus, the illegitimate children of your father shall not inherit from your two aunts. Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated. We hope that we were able to enlighten you on the matter. Editors note: Dear PAO is a daily column of the Public Attorneys Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net.

A widow can use her maiden surname

Published : Sunday, October 23, 2011 00:00 Article Views : 1,159 Written by : Persida Acosta Dear PAO, I am a widow and my concern relates to my surname. I want to use my complete maiden name since my husband has already passed away. Considering that I have been using my husbands surname, can I simply go back to using my maiden name or will I have to go through any legal procedure? I understand that Article 370 of the Civil Code governs this matter. The law uses the term may which means that the use of the husbands surname is only permissive and not mandatory. I also think that there is no law imposing on a married woman to use the surname of her husband upon their marriage. But I want clarification because I want to make sure that problems will not arise in the future should I go back to using my maiden name. What documents will I need? I hope you can enlighten me on this matter. Respectfully yours, Odetp Dear Odette, As a general rule, a person cannot change his name or surname without proper judicial authority (Article 376, New Civil Code of the Philippines). However, there are several exceptions provided for under our laws. For instance, in the case of married women, they have the option of changing their names or surnames. According to Article 370, id, A married woman may use: (1) Her maiden first name and surname and add her husbands surname, or (2) Her maiden first name and her husbands surname, or (3) Her husbands fullname, but prefixing a word indicating that she is his wife, such as Mrs. You are correct in stating that the use of the husbands surname is only permissive and not mandatory as the law simply used the term may. Therefore, a married woman can continue using her complete maiden name even if she has already entered into a contract of marriage. Nevertheless, should she desire to make use of her husbands surname or his fullname, she may, by operation of law, change her name without the

need of filing a petition in court for such change of name. In the case of a widow, the law provides that she may use her deceased husbands surname as though he were still living, in accordance with Article 370 (Article 373, id). Since the law, again, made us of the term may, it presupposes that she is given the option of using her deceased husbands surname. This option is granted to her in recognition of the possibility that she may still desire to cherish her deceased husbands memory (page 772, Civil Code of the Philippines Annotated, Fourteenth Edition, Edgardo L. Paras). Should she desire otherwise, she may go back to using her maiden surname without having to file a petition for change of name. Applying the foregoing in your situation, we believe that you may use your maiden surname, without having to go through any legal procedure, considering that your husband has already passed away. 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. Editors note: Dear PAO is a daily column of the Public Attorneys Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net.

Petition for adoption may contain pleading for change of name

Published : Saturday, October 22, 2011 00:00 Article Views : 1,164 Written by : Persida Acosta Dear PAO, I was reading The Manila Times when I came across your article entitled Confusion in illegitimate childs surname. It made me pause and think about my situation. I am an American and I am married to a Filipina. My wife has a three-year-old daughter who I have been providing for and love as my own. Since I am the only father she ever knew, she has been using my surname even when she was enrolled in school in the US. She has never used her biological fathers surname except in her birth certificate. My wife thinks it will be better if our daughter will not know her father because from what I have heard, he was an abusive drunk and a drug user. My wife and I would like to know if we can legally have her surname changed so that she can use my surname. I do not want her to have any problems now or in the future. In your response to your article, you mentioned that the name of the child could not be changed due to abandonment because this was not a justifiable reason. This was actually one of the bases we were looking at; the other is through adoption, which is something that I am most willing to do. I hope you can enlighten us. Warmest regards, Edward Dear Edward,

Under Philippine laws, an illegitimate child may use the surname of his or her father provided that their filiation has been expressly recognized by his or her 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 (Section 1, Republic Act No. 9255). You mentioned in your letter that the surname of your wifes daughter, as appearing in her birth certificate, is that of her biological father. She may continue using said surname, unless her father, during his lifetime, institutes an action before the regular courts to prove non-filiation (id). Insofar as you desire to have her surname be changed to that of your surname, we would like to reiterate that, as what we have mentioned in our previous article, Confusion in illegitimate childs surname, a petition for change of name will not prosper on the sole basis of the biological fathers abandonment of the child, especially when it is in the best interest of the child to remain using her fathers surname as it will enable her to enjoy the rights of an acknowledged illegitimate child. Therefore, you should allow you wifes daughter to continue using her fathers surname, even in her school records and the like. This will also eliminate any possible confusion. Nevertheless, if you and your wife still desire for such change of name, you and your wife may opt to file a petition for adoption before the Regional Trial Court, sitting as a Family Court, of the place where you and your family reside here in the Philippines (Section 6, A.M. No. 02-6-02SC). It is essential that you possess the following qualifications: (1) be of legal age; (2) in possession of full civil capacity and legal rights; (3) of good moral character; (4) have not been convicted of any crime involving moral turpitude; (5) emotionally and psychologically capable of caring for children; and (6) country has diplomatic relations with the Republic of the Philippines (Section 4, id). The petition must specifically state at the heading of the initiatory pleading that the same contains an application for change of name, and should indicate that you possess the aforestated qualification. The petition should also state the cause or reason for the change of name, and should allege the following: (a) the first name, surname, age and residence of the adoptee as shown by her record of birth, baptismal and school records; (b) that the adoptee is not disqualified by law to be adopted; (c) the probable value and character of the estate of the adoptee; and (d) the first name, surname or names by which the adoptee is to be known and registered in the Civil Registry (Section 7 (6), id). The court may grant your petition should it find everything meritorious. 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. Editors note: Dear PAO is a daily column of the Public Attorneys Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net.

Oral donation requires delivery of donated thing

Published : Friday, October 21, 2011 00:00 Article Views : 1,125 Written by : PERSIDA ACOSTA

Dear PAO, I have a situation where my oldest sister stated that she wanted the bedroom furniture that my mother gave to me when my daughter was born. She advised that as the eldest she had the right to take the furniture. My father died in April 1997 and then my mother died in December 2006. My eldest sister lives with me. She is moving out and has now demanded that I give her the furniture based on her being the oldest and said that she can take what she wants. Aside from the fact that my mother freely gave me that furniture for my daughter, I dont believe I have to abide by her request. Can you tell me if she has any merit to her claim? Bernadette Dear Bernadette, It is unfortunate that you are now in a row with your sister over the estate of your late parents. Petty it would seem, but this is the very situation which often happens when someone passes away. Since you never mentioned any last will and testament that your parents left after their death, we will presume that there is really none. Before we discuss the process of partitioning the estate of your parents, let us first determine the validity of the donation which your mother made in your favor. According to the law, donation of personal property may be done orally or in writing. In the case of oral donation of personal property, the same must be done simultaneously with the delivery of the property donated. However, if the value of the property is more than P5,000 the donation must be in writing or else the same is null and void. This is the tenor of Article 748 of the New Civil Code of the Philippines which provides as follows, to wit: Article 748. The donation of a movable may be made orally or in writing. An oral donation requires the simultaneous delivery of the thing or of the document representing the right donated. If the value of the personal property donated exceeds Five thousand pesos, the donation and the acceptance shall be made in writing. Otherwise, the donation shall be void. Assuming that the value of the personal properties given to you by your mother amounted to more than P5,000.00 and the same was not in writing, the donation is null and void. Such being the case, these properties shall form part of the estate of your parents. In the partition of the said estate, the law on intestate succession shall govern. Insofar as this law

is concerned, brothers and sisters shall inherit in equal shares. Thus, you, your sister and your other siblings shall own the same equally. However, anyone of you may demand partition which may be done in accordance with the said law, to wit: Art. 1085. In the partition of the estate, equality shall be observed as far as possible, dividing the property into lots, or assigning to each of the co-heirs things of the same nature, quality and kind. Art. 1086. Should a thing be indivisible, or would be much impaired by its being divided, it may be adjudicated to one of the heirs, provided he shall pay the others the excess in cash. Nevertheless, if any of the heirs should demand that the thing be sold at public auction and that strangers be allowed to bid, this must be done. Thus, insofar as the division of the estate of your deceased parents is concerned, the order of birth among siblings is not taken into consideration. The law shall govern in case of dissension among you and your siblings and not the whims or caprice of your eldest sibling. Therefore, your sister being your eldest sibling cannot demand the things she wants to appropriate for herself, unless all of the other heirs consented to the same. Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated. We hope that we were able to enlighten you on the matter. Editors note: Dear PAO is a daily column of the Public Attorneys Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net.

No person can change his name without court authority

Published : Thursday, October 20, 2011 00:00 Article Views : 1,279 Written by : PERSIDA ACOSTA Dear PAO, I am a single mother. I am working alone for the future of my daughter because her father does not support her for her needs. I want to change the surname of my baby because she uses the surname of her father but I want to change it into my surname. What will I do to change it? I am not married to her father. Ruby Jane Dear Ruby Jane, Under the law, a person desiring to change his/her surname shall file an appropriate action in court for the said purpose. This is particularly provided by Article 376 of the New Civil Code of the Philippines which provides as follows:

No person can change his name or surname without juridical authority from the court Thus, a person desiring to change his/her surname shall file the necessary case in court to obtain the judicial approval as required by law. This can be done through the filing of a Petition for Change of Name in court (Rule 103, 1997 Rules of Court). After the trial, the court shall issue an order either dismissing or denying the petition or granting the same. In case of the latter, the same shall be served upon the civil registrar concerned, who shall forthwith enter the same in the civil register. This is basically the process one needs to undergo if he intends to change his/her surname. On the other hand, a petition for change of name is not automatically granted by the court. It depends on the grounds on which the petition is anchored and the sound discretion of the court to determine whether or not the grounds relied on are meritorious that will result in a favorable decision. You did not mention in your letter whether you daughter was recognized by her father. If she was not, then the use of her fathers surname is not allowed. Under Article 176 of the Family Code as amended by RA 9255, illegitimate children shall use the surname of their mother, unless their father acknowledges their filiation. This is a ground for the court to grant the authority to change the surname of your daughter. But it is the father who has to file the necessary petition, if he does not recognize the child as his. As held by the Supreme Court in Republic of the Philippines vs. Trinidad R.A. Capote, G.R. No. 157043, February 2, 2007, 514 SCRA 76, to wit: Our laws on the use of surnames state that legitimate and legitimated children shall principally use the surname of the father. The Family Code gives legitimate children the right to bear the surnames of the father and the mother, while illegitimate children shall use the surname of their mother, unless their father recognizes their filiation, in which case they may bear the fathers surname. Applying these laws, an illegitimate child whose filiation is not recognized by the father bears only a given name and his mothers surname, and does not have a middle name. The name of the unrecognized illegitimate child therefore identifies him as such. It is only when the illegitimate child is legitimated by the subsequent marriage of his parents or acknowledged by the father in a public document or private handwritten instrument that he bears both his mothers surname as his middle name and his fathers surname as his surname, reflecting his status as a legitimated child or an acknowledged child. If, on the other hand, your daughter was recognized by her father, it is possible that the latter will oppose the petition and in the absence of a valid and reasonable ground, the court may deny the same. Moreover, the Supreme Court on several occasions denied a petition for the change of name, based among others on the fact that the petition was not filed by the very person who wants to

change his/her own name. In the case of Republic of the Philippines versus Hon. Pio R. Marcos, et.al. (G.R. No. L-31065, February 15, 1990), the Supreme Court ruled that (c)learly, the petition for change of name must be filed by the person desiring to change his/her name, even if it may be signed and verified by some other person in his behalf. xxx Hence, only May Sia herself, xxx, when she shall have reached the age of majority, may file the petition to change her name. The decision to change her name, the reason for the change, and the choice of a new name and surname shall be hers alone to make. It must be her personal decision. No one else may make it for her. The reason is obvious. When she grows up to adulthood, she may not want to use her stepfathers surname, nor any of the aliases chosen for her by her mother. Thus, the premature filing of such petition in behalf of your minor daughter may also be a ground for the denial of the petition. Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated. We hope that we were able to guide you with our opinion on the matter. Editors note: Dear PAO is a daily column of the Public Attorneys Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net.

Employer may withhold pay because of employees infractions

Published : Wednesday, October 19, 2011 00:00 Article Views : 1,355 Written by : PERSIDA ACOSTA Dear PAO, I would like to inquire on certain labor matters. I am an employee of a company in Makati. I tendered my resignation due to personal and health concerns which takes effect 3 months thereafter. I went to discuss the matter with our big boss and during the discussion, she approved the resignation. I also learned that they would not be looking for a replacement for my position. She opted to get point persons for the two departments that I am handling. Due to this information, I again wrote them asking them to allow me to utilize my unused 6 day-leave credits as terminal leave. The said letter was approved by the boss. I would like to ask whether I would be charged with AWOL for the remaining period that I will not report for work after the expiration of my 6 days leave. As for example I filed my resignation in July to take effect in October and I will use my 6 days leave in September after which I will no longer report for work. I have complied with the 30-day notice rule prior to the date indicated in my resignation letter. Can they withhold my last pay due to it? May I be terminated for such? Allan

Dear Allan, An employee desiring to sever the employee-employer relationship may do so even in the absence of a valid or justifiable reason. Under the Labor Code of the Philippines, an employee may terminate his/her employment as follows: ARTICLE 285. Termination by employee. (a) An employee may terminate without just cause the employee-employer relationship by serving a written notice on the employer at least one (1) month in advance. The employer upon whom no such notice was served may hold the employee liable for damages. xxxx It is clear from the foregoing that even without cause, an employee may terminate his/her employment as long as the 1 month notice as mentioned in the aforesaid law is complied with. In your situation, since you have tendered your resignation letter 3 months before it takes effect, the requirement of the above provision of the law is complied with. However, during the period from the submission of the said letter and the effectivity date of your resignation, you are still employed with your employer. Thus, as an employee, you are still bound to comply with your obligations to your employer and abide by the orders, rules and regulations, policies etc. of your employer, including reporting for work on these periods. Any infractions that you may commit during those times shall give your employer the opportunity to take necessary actions appropriate or commensurate to the violation committed. This may include forfeiture of certain benefits, suspension or even termination from the service, however absurd it may seem as you are already resigned. Nevertheless, your employer may not withhold your earned salary or other remunerations you are entitled to receive just because of these infractions. The Labor Code strictly provides as follows: ART. 116. Withholding of wages and kickbacks prohibited. It shall be unlawful for any person, directly or indirectly, to withhold any amount from the wages of a worker or induce him to give up any part of his wages by force, stealth, intimidation, threat or by any other means whatsoever without the workers consent. In any event, an employer may withhold the salary of his/her employee under the following circumstances: ART. 113. Wage Deduction. No employer, in his own behalf or in behalf of any person, shall make any deduction from the wages of his employees, except: (a) In cases where the worker is insured with his consent by the employer, and the deduction is to recompense the employer for the amount paid by him as premium on the insurance;

(b) For union dues, in cases where the right of the worker or his union to check-off has been recognized by the employer or authorized in writing by the individual worker concerned; and (c) In cases where the employer is authorized by law or regulations issued by the Secretary of Labor. Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated. We hope that we were able to enlighten you on the matter. Editors note: Dear PAO is a daily column of the Public Attorneys Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net.

Treasure found on donated land prompts donor to revoke deed of donation

Published : Tuesday, October 18, 2011 00:00 Article Views : 1,606 Written by : PERSIDA ACOSTA Dear PAO, My brother already executed a deed of donation for me and the rest of my sisters. The land title is still in the name of my brother. Two weeks after executing the said document, something happened. A gold treasure was found in the area which my brother gave to me. He plans to revoke the said deed of donation and not to proceed with the transfer of title in my name. He gave me an ultimatum that I have to give a 50% share of the said treasure otherwise he will proceed revoking the said donation. My question is can the deed of donation that he signed and already notarized be cancelled? What are my rights and what should I do to transfer the title of the land donated in my name? Ryan Dear Ryan, Donation is an act of liberality whereby a person disposes gratuitously of a thing or right in favor of another, who accepts it (Article 725, New Civil Code of the Philippines). This was the very act of your brother when he gave his land to his siblings. Assuming that the said deed of donation is valid, ownership of the property donated was transferred to his siblings from the moment he learned of their acceptance which may be in the very deed of donation or a separate public document (Articles 734 and 749, New Civil Code of the Philippines). The law provides for instances when a deed of donation may be revoked or reduced. Article 760 of the New Civil Code of the Philippines specifically provides for the same, to wit:

Every donation inter vivos, made by a person having no children or descendants, legitimate or legitimated by subsequent marriage, or illegitimate, may be revoked or reduced as provided in the next article, by the happening of any of these events: (1) If the donor, after the donation, should have legitimate or legitimated or illegitimate children, even though they be posthumous; (2) If the child of the donor, whom the latter believed to be dead when he made the donation, should turn out to be living; (3) If the donor subsequently adopt a minor child. A donor may also revoke or cancel a donation by reason of ingratitude. This is explicitly provided under Article 765 of the New Civil Code as follows: The donation may also be revoked at the instance of the donor, by reason of ingratitude in the following cases: (1) If the donee should commit some offense against the person, the honor or the property of the donor, or of his wife or children under his parental authority; (2) If the donee imputes to the donor any criminal offense, or any act involving moral turpitude, even though he should prove it, unless the crime or the act has been committed against the donee himself, his wife or children under his authority; (3) If he unduly refuses him support when the donee is legally or morally bound to give support to the donor. Taking into consideration the above provisions, it appears that your brother has no legal basis to cancel the deed of donation he executed in your favor just because a gold treasure was found on the property he donated. As the new owner thereof, you may exercise your right over the property including the treasure that was found therein. However, for the sake of reciprocating the generosity of your brother, you may share the said treasure with him and your other siblings. With regard to the transfer of the title of the said land in your name, you may do so by registering the said deed of donation with the Registry of Deeds of the place where the property is located. If all the requirements are complied with, such as the surrender of the Owners Duplicate Copy of the Title and other documents, payment of taxes and other fees as the Register of Deeds may deem proper and necessary to require, the registration of the aforesaid documents and the eventual transfer of title of the property shall be effected. Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated. We hope that we were able to enlighten you on the matter.

Editors note: Dear PAO is a daily column of the Public Attorneys Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net.

Unwed mom wants middle name for illegitimate child

Published : Monday, October 17, 2011 00:00 Article Views : 1,528 Written by : PERSIDA ACOSTA Dear PAO, Good day! I am of legal age and single mother due to give birth in a months time from now. My child will be illegitimate as it will unfortunately be and will not be recognized by the father. I was thinking about how the child is going to be registered being an illegitimate child as it is. My question is regarding the use of middle name for my baby. Can I just have my baby use my middle name too? Though then it would seem that she would be like a sister to me. Phoenix Dear Phoenix, An illegitimate child shall use the surname of his mother. But, if he is recognized by his father, he may use the surname of the latter. This is in accordance with Article 176 of the Family Code of the Philippines as amended by Republic Act No. 9255. It is true that according to the Supreme Court an illegitimate child has no middle name. This was pronounced by the court particularly in the case of Republic of the Philippines v Trinidad R.A. Capote (G.R. No. 157043, February 2, 2007, 514 SCRA 76), to wit: Our laws on the use of surnames state that legitimate and legitimated children shall principally use the surname of the father. The Family Code gives legitimate children the right to bear the surnames of the father and the mother, while illegitimate children shall use the surname of their mother, unless their father recognizes their filiation, in which case they may bear the fathers surname. Applying these laws, an illegitimate child whose filiation is not recognized by the father bears only a given name and his mothers surname, and does not have a middle name. The name of the unrecognized illegitimate child therefore identifies him as such. It is only when the illegitimate child is legitimated by the subsequent marriage of his parents or acknowledged by the father in a public document or private handwritten instrument that he bears both his mothers surname as his middle name and his fathers surname as his surname, reflecting his status as a legitimated child or an acknowledged child. Thus, since your child will be born out of wedlock, the child is illegitimate. As such, he/she will bear no middle name. Unless and until the child is recognized by his father, he/she will remain without a middle name. This may bring discomfort, anxiety and discrimination to your child however unless and until a law is passed allowing an illegitimate child to use his/her mothers middle name, we have to abide by the aforesaid decision.

Nevertheless, steps are being taken in Congress to pass a law mandating an illegitimate child to use not only his/her mothers surname but also his/her mothers middle name. This was introduced by Hon. Angelo Palmones, AGHAM partylist representative, through House Bill No. 4649. Upon the passage of this proposed law, an illegitimate child shall have the right to use the middle name of his/her mother. Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated. We hope that we were able to enlighten you on the matter. Editors note: Dear PAO is a daily column of the Public Attorneys Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net.

Employer cannot make employees pay for crime committed by others

Published : Sunday, October 16, 2011 01:29 Article Views : 1,315 Written by : Severino Frayna Dear PAO, The jewelry store where I was working was robbed during my shift. Now, the storeowner is deducting from our salaries the value of the items robbed. Our employer is also deducting from our salary a cash bond. Are these legal? HR Dear HR, Wage is defined as the employees remuneration or earning paid by his employer for work done or to be done or for services rendered or to be rendered. It includes the fair and reasonable value, as determined by the Secretary of Labor, of board, lodging or other facilities customarily furnished by the employer to the employee (Article 97, Labor Code of the Philippines). It is what the laborer gets for every minute he spends in conscientiously performing his job. Being the fruit of his hard work, he should receive the full amount of his wage without deduction other than those authorized by law. As a rule, no employer, in his behalf or in behalf of any other person, shall make any deduction from the wages of his employees, except in the following instances: 1) in cases where the worker is insured with his consent by the employer, and the deduction is to recompense the employer for the amount paid by him as premium of the insurance; 2) for union dues, in cases where the right of the worker or his union to check-off has been recognized by the employer or authorized in writing by the individual worker concerned; and 3) in cases where the employer is authorized by law or regulations issued by the Secretary of Labor (Article 113, ibid.). The act of your employer in deducting from your salaries the value of the items robbed in his store is clearly not among the

aforementioned exceptions. There is neither law nor rule in our country which authorizes a storeowner to ask from his employees reimbursement for the items robbed in his store. Your employer cannot lawfully make his employees liable for the crime committed by some other persons. His proper recourse is to file the necessary charges against the perpetrator of the crime so that they may be held responsible and accountable in accordance with our laws. As regards your second question, the deduction of cash bonds from an employees wage is allowed provided that his employer is engaged in such trades, occupations or businesses where the practice of making deductions or requiring deposits is recognized or is necessary or desirable as determined by the Secretary of Labor. These employers may also require their employees to make deposits from which deductions shall be made for the reimbursement of loss of or damage or tools, materials or equipment supplied by the employer (Article 114, ibid.). Please be reminded that this opinion is solely based on your narration of facts and our appreciation of the same. The opinion may vary if other facts are added or elaborated. We hope that we were able to address your concern. Editors note: Dear PAO is a daily column of the Public Attorneys Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net.

Illegitimate child entitled to get support froms father

Published : Saturday, October 15, 2011 00:00 Article Views : 1,437 Written by : Jessa Bayrante Dear PAO, I have a son with a married man. He acknowledged our son but he has stopped giving financial support ever since his wife found out about me and my son. Can I still ask for financial support from the father of my son even if he is still married? Can his wife file a case against me and her husband? Lucy Dear Lucy, An illegitimate child or one who is born outside a valid marriage between his parents is entitled to receive support from his father provided that he was duly recognized by the latter as his own illegitimate child. An illegitimate child may be recognized by his father through the record of birth appearing in the civil register or a final judgment or through an admission of filiation made by the father in a public document or in a private handwritten instrument which is signed by the putative father. In the absence of the foregoing, illegitimate filiation may be proved by the open and continuous possession of the status of an illegitimate child or through any other means allowed by the Rules of Court and special laws (Article 172, Family Code of the Philippines). Since your son was duly acknowledged by his father, he is entitled to receive financial support from the latter. His obligation to support your illegitimate child will not cease simply because he is already married and his wife discovered his illicit relationship. While our law frowns upon the

relationship that you have with the father of your son, the innocent child you brought into the world is afforded by our law with certain rights and protection, one of which is the right to be supported by his father. However, the amount of support which your son will receive will depend upon the means or resources of his father and your sons actual needs (Article 201, ibid.). Hence, the fact that the father of your son is already married and also bound by law to support his legitimate family will be taken into consideration in determining how much your child will receive from his father as financial support. As to your question whether the wife of the father of your son can file a case against you and her husband, our answer is in the affirmative. Having a relationship with a married man, runs afoul, not only with our laws, but also to the values that Filipinos are very known for. Our laws, thus, give the aggrieved wife the right to institute the proper action against the persons who wronged her. Please be reminded that this opinion is solely based on your narration of facts and our appreciation of the same. The opinion may vary if other facts are added or elaborated. We hope that we were able to address your concern. Editors note: Dear PAO is a daily column of the Public Attorneys Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net.

Will of deceased controls disposition of his estate

Published : Friday, October 14, 2011 00:00 Article Views : 1,186 Written by : Persida Acosta Dear PAO, My 2nd oldest sister is withholding the certificates of title of my fathers properties that are included in his last will and testament. Is the last will and testament executed by my father sufficient for us to recover the certificates from my sister? Martinez Dear Martinez, A will is an act whereby a person is permitted with the formalities prescribed by law, to control to a certain degree the disposition of his estate, to take effect after his death (Article 783, Civil Code). When a decedent has left a last will and testament, it is necessary that it be probated first before the distribution of the estate mentioned therein. Any executor, devisee, or legatee named in a will, or any other person interested in the estate, may, at any time after the death of the testator, petition the court of the place where he resides at the time of his death to have the will allowed (Section 1 Rule 73, Section 1 Rule 76, Rules of Court). When a will is delivered to, or petition for allowance of a will is filed in, the court having jurisdiction, such court shall fix a time and place for proving the will when all concerned may appear to contest the allowance thereof, and

shall cause notice of such time and place to be published three (3) weeks successively, previous to the time appointed, in a newspaper of general circulation in the province (Section 3, Rule 76, Rules of Court). Thus, we advise that you initiate the filing of an action for the probate of the last will and testament of your father. The court where the case is filed shall, upon your motion, make the necessary order to direct your sister to surrender the certificates of title after due hearing and may direct the entry of a new certificate of title or memorandum upon such surrender. If your sister is not amenable to the process of court, said court may order the annulment of the same as well as the issuance of a new certificate of title in lieu thereof. Such new certificate and all duplicates thereof shall contain a memorandum of the annulment of the outstanding duplicate (Section 107, If found P.D. 1529 otherwise known as the Property Registration Decree). Further, your sister may be liable for indirect contempt if she disobeys the order of the court to surrender the certificates of title. If found guilty for indirect contempt, your sister may be liable to pay fine not exceeding thirty thousand pesos or imprisonment not exceeding six (6) months or both (Section 3 & 7, Rule 71, Rules of Court). Please be reminded that the above legal opinion is solely based on our appreciation of the problem that you have stated. The opinion may vary when other facts are elaborated. Editors note: Dear PAO is a daily column of the Public Attorneys Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net.

Property distributed in equal shares to heirs

Published : Thursday, October 13, 2011 00:00 Article Views : 1,711 Written by : PERSIDA ACOSTA Dear PAO, My sister who has been living in the house owned by our parents is denying me and my three other siblings of our right over this house and the land where it is built. She claims that it was the wish of our mother to give the property to her but there is no last will and testament. She also claims that she took care of our parents before they passed away and spent P200,000 for the medical expenses of our mother when she was hospitalized, but she cannot present the receipts. The property of our parents is still in their name. I know I am entitled to the land since I am one of their children. What do you mean by by way of succession, which may be the basis of my rights over the property? Am I entitled to the property automatically or is there a need for a probate? Michael Dear Michael, A person can control the distribution of his properties after his death through the execution of a last will and testament. However he can only freely dispose, to some other person who is not his heir, the half of his property, subject to the inheritance of his spouse and illegitimate children.

The other half is reserved to his legitimate children and descendants, which shall be distributed to them equally (Article 888, Civil Code). But if the deceased did not leave a last will and testament, his properties shall be distributed to his heirs according to the share mentioned in the Civil Code. Accordingly, if the only surviving heirs are the children, the entire property shall be distributed to them in equal shares. In your case, you are entitled to 1/5 of the house and lot considering that your parents did not leave a last will and testament and that you have four siblings. Your right over the said house and lot is automatically granted to you upon the death of your parents and does not need the performance of any other act to acquire the same. According to Article 774 of the Civil Code, succession is a mode of acquisition by virtue of which the property, rights and obligations to the extent of the value of the inheritance, of a person are transmitted through his death to another or others by will or be operation of law. Moreover probate is not necessary in your case because this is only necessary if your parents left a last will and testament. Nevertheless, the said property can only be distributed to you and to your siblings after the payment of debt of your parents. The expenses incurred by your sister for the hospitalization of your mother are considered a debt which should be paid first before distribution. Your sister cannot claim the property for her own even if it be the wish of your mother because the said wish was not reduced in writing to constitute a last will and testament. We advise you, since there is dispute among you and your sister as to your respective share, to initiate an action for partition. Here, your sister has to file her claim for the alleged expenses incurred for your mother wherein she shall present her evidence to prove the same. In the said case, the court shall also consider the manner of partition of the property. It may in its decision rely on Article 1086 of the Civil Code which provides that: Should a thing be indivisible or would be much impaired by its being divided, it may be adjudicated to one of the heirs, provided he shall pay the others the excess in cash. Nevertheless, if any of the heirs should demand that the thing be sold at public auction and that strangers be allowed to bid, this must be done. Please be reminded that the above legal opinion is solely based on our appreciation of the problem that you have stated. The opinion may vary when other facts are elaborated. Editors note: Dear PAO is a daily column of the Public Attorneys Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net.

Property in your mothers name, she has exclusive rights to it

Published : Wednesday, October 12, 2011 00:00 Article Views : 1,609 Written by : PERSIDA ACOSTA Dear PAO, I want to seek for your advice. My mother married my stepfather several years after my fathers death. They never had a child, but my stepfather had 12 children with his first wife. After 11 years of marriage, my stepfather died due to his illness. His children want to sell the house and

lot and divide the proceeds among them and my mother equally. But the title of the house and lot is under my mothers name and she has with her my stepfathers last will and testament. I just want to know whether my mother has a right over that property. Is it not that she shares it with my stepfather, meaning half of it belongs to her and the other half belongs to my stepfather? What is the proper thing for them to do in order to divide the property? I hope you can give us your soonest response. Rainyrose Dear rainyrose, You mentioned in your letter that the title of the house and lot is under your mothers name. Hence, it is safe to assume that she is the owner thereof. If she can prove that the house and lot are her personal and exclusive properties or that these were acquired before her marriage to your stepfather, then the twelve children of your stepfather have no right over the same. Only your mother can exercise rights over the aforementioned properties being the sole owner thereof. Moreover, she can prohibit the sale of the properties without her consent because Article 429 of the New Civil Code states that the owner of a thing has the right to exclude any person from the enjoyment and disposal thereof, and he may use such force as may be reasonably necessary to repel or prevent an actual or threatened unlawful physical invasion or usurpation of property. On the other hand, if the house and lot were acquired during the marriage of your mother and your stepfather and if they have not agreed on a marriage settlement, their property regime will be considered as absolute community of property. Thus, they share the properties as co-owners thereof (Article 90, Family Code of the Philippines). Since your stepfather has passed away, the contract of marriage between him and your mother is now considered terminated and their absolute community of property dissolved. Consequently, their community property shall then be liquidated in the same proceeding for the settlement of estate (Article 103 (1), id). Since they are co-owners of the house and lot, only your stepfathers share shall be subjected to the process of settlement of estate. Half of the property belongs to your mother and it cannot be the subject of settlement of estate as she is still living. Accordingly, your mother must file a petition for the allowance of your stepfathers last will and testament and deliver the same before the Regional Trial Court of the province where he resided at the time of his death for the probate thereof as well as for the settlement of his estate. The probate of the will is necessary so that the desires and wishes of your stepfather as to the distribution of the disposable portion of his estate can be respected and followed. Insofar as the portion of your stepfathers estate which he cannot dispose of by will, the same shall be distributed equally among his legal heirs, to wit, your mother and his twelve children. We hope that we were able to answer your concerns. 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. Editors note: Dear PAO is a daily column of the Public Attorneys Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net.

Strength of land title bolsters claims of ownership

Published : Tuesday, October 11, 2011 00:00 Article Views : 1,579 Written by : Persida Acosta Dear PAO, My grandparents owned a residential property. There were tenants staying there for quite some time. My parents moved overseas and my mother hired a lawyer because she intended to build a house. But the lawyer passed away and my mother lost the property. The people occupying it claimed that they were the ones paying the real property taxes and I believe they were able to have the title of the property appear in their names. My siblings and I intend to challenge this as we also want to build a house on that property in memory of our mother. Article 494 of the Civil Code contains the statement that we can challenge the occupier as we have not signed any document giving them the land and neither did our mother sell the land to them. Ruth Dear Ruth, You mentioned in your letter Article 494 of the New Civil Code of the Philippines. We believe, however, that the provisions of the said article are inapplicable in your situation. In particular, Article 494 relates to the partition of a property co-owned by several persons. It is provided therein that, No co-owner shall be obliged to remain in the co-ownership. Each co-owner may demand at any time the partition of the thing owned in common, insofar as his share is concerned. Nevertheless, an agreement to keep the thing undivided for a certain period of time, not exceeding ten years, shall be valid. This term may be extended by a new agreement. A donor or testator may prohibit the partition for a period which shall not exceed twenty years. Neither shall there be any partition when it is prohibited by law. No prescription shall run in favor of a co-owner or co-heir against his co-owners or co-heirs so long as he expressly or impliedly recognizes the co-ownership. There is no showing that you, your siblings and the tenants are co-owners of the abovementioned property. In fact, you mentioned in your letter that you believe that the title of the property is already under the names of the tenants. Hence, the said article is irrelevant in your case. Nevertheless, if you have proof that the aforementioned property in fact belongs to your grandparents and that no valid transfer was made by your ascendants, you may challenge the alleged ownership of the tenants and recover the ownership of the land by filing an action in court. As provided for under Article 433, id, Actual possession under claim of ownership raises a disputable presumption of ownership. The true owner must resort to judicial process for the

recovery of the property. Accordingly, your grandparents, or, should they have passed away already, their legal heirs, should file an action to recover possession based on ownership or accion reivindicatoria before the Regional Trial Court. In filing such action, your family must rely on the strength of your title and you must positively identify the property your family is claiming. We would like to stress that you and your siblings may not build anything on the property unless you can prove that you are the owners of the land. Should you do so, you may be considered as builders in bad faith and you may lose whatever you build thereon without right to indemnity if it is shown that the tenants are the real owners of the said property (Article 449, 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. Editors note: Dear PAO is a daily column of the Public Attorneys Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net.

Tampering with birth certificate a crime

Published : Monday, October 10, 2011 00:00 Article Views : 1,569 Written by : Jessa Bayrante Dear PAO, My biological sister was taken care of by my uncles family (youngest brother of my father). My uncle had no children. My sister was delivered by a hilot (a person, in most cases a woman, who is considered a midwife in rural Philippines) and was registered in the local civil registry before given to the care of my uncles family. Years passed, my sister grew up knowing her real parents to be my uncle and his wife. In my curiosity, I went to the National Statistics Office to ask for a copy of her birth certificate. I found out that the original birth certificate filed by my parents was tampered with by my aunt to show that my sister was their biological daughter. I was sure of what my aunt did because a photocopy of the original birth certificate showed that the names of my parents had been erased and substituted with the names of my uncle and aunt. Was my aunts action legal? Lealyn Dear Lealyn, Assuming that your conjecture is true, the act of your aunt of changing the names of your parents in the birth certificate of your sister by putting her name and her husbands as parents of your sister when in fact and in truth they are not the parents is not legal and it actually amounts to a crime. This is called simulation of birth, which is penalized under Article 347 of the Revised Penal Code, to wit: Article 347. Simulation of births, x x x. The simulation of births and the substitution of one

child for another shall be punished by prision mayor and a fine of not exceeding 1,000 pesos. x x x. Your aunt has feigned the birth of your sister by making it appear that she and her husband are the parents of your sister. This resulted in the loss of the true identity and status of your sister as child of your parents and she obtained the status of becoming the child of your aunt and uncle. And that is punishable by law. If your aunt really wanted for her and her husband to have legal custody of and to exercise parental authority over your sister, she and her husband should have adopted your sister in accordance with Republic Act (RA) 8552, or the Domestic Adoption Act of 1998. RA 8552 was approved by the then-President Fidel V. Ramos on February 25, 1998. Furthermore, the tampering allegedly made by your aunt could have been rectified and she may not be held liable for such act if the Petition for Adoption of your sister pursuant to RA 8552 was filed by your aunt and uncle within five (5) years from the effectivity of the Act as provided for in Section 22, to wit: Section 22. Rectification of Simulated Births. A person who has, prior to the effectivity of this Act, simulated the birth of a child shall not be punished for such act: Provided, that the simulation of birth was made for the best interest of the child and that he/she has been consistently considered and treated by that person as his/her own son/daughter: Provided, further, that the application for correction of the birth registration and petition for adoption shall be filed within five (5) years from the effectivity of this Act and completed thereafter: Provided, finally, that such person complies with the procedure as specified in \l articleIV Article IV of this Act and other requirements as determined by the Department. We hope we were able to enlighten you on the matter. Please take note, however, that all the information contained herein are based on our appreciation of your questions. A different legal opinion may be given if other facts not included in your query will be discussed. Editors note: Dear PAO is a daily column of the Public Attorneys Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net.