Saturday, July 21, 2007

Support for abandoned woman and her children

Summary:

[1] If you and your children have been abandoned by
your husband or live-in partner, you can compel him to
give financial support by filing a petition for Protection
Order under RA 9262.

[2] In filing this petition, you can get free legal
help from the Public Attorneys Office or the Integrated
Bar of the Philippines chapter offices. You can file the
petition with the Family Court of the place where you
live.

[3] Support includes everything necessary for
sustenance, dwelling, clothing, medical attendance,
education and transportation, in keeping with the
financial capacity of your family.

[4] You can ask for support pendente lite (while the
case is ongoing).

[5] The Family Court judge will set the amount of
support in proportion to your needs and the resources of
your husband or live-in partner.

[6] In the Protection Order, the judge will direct the
employer of your husband or live-in partner to remit the
support directly to you and your children.

[7] If your husband or live-in partner and his employer
disregard the Protection Order, you can ask the judge to
cite them for contempt of court. The penalty for
contempt is imprisonment or fine.


What law governs support?

The specific provisions of the Family Code of the Philippines on support can
be found in Title VIII, Articles 194 up to 208.

What does support consist of?

Article 194 of the Family Code defines support as comprising everything
indispensable for sustenance, dwelling, clothing, medical attendance,
education and transportation, in keeping with the financial capacity of the
family.

The education of the person entitled to be supported includes his schooling or
training for some profession, trade or vocation, even beyond the age of
majority. Transportation includes expenses in going to and from school, or to
and from place of work.

During proceedings in court for legal separation, annulment of voidable
marriage or declaration of nullity, how will support be provided for?

Article 198 of the Family Code provides:

During the proceedings for legal separation or for annulment of marriage,
and for declaration of nullity of marriage, the spouses and their children shall
be supported from the properties of the absolute community or the conjugal
partnership. After the final judgment granting the petition, the obligation of
mutual support between the spouses ceases. However, in case of legal
separation, the court may order that the guilty spouse shall give support to
the innocent one, specifying the terms of such order.
(Please read below the Supreme Court Rule on Provisional Orders A.M. No.
02-11-12-SC on how our courts determine the amount of support.)

How much is the amount of support to be granted?

Article 201 provides that the amount of support, in the cases referred to in
Articles 195 and 196, should be in proportion to the resources or means of
the giver and to the necessities of the recipient.

Can support be reduced or increased?

Article 202 provides that support can be reduced or increased
proportionately, according to the reduction or increase of the necessities of
the recipient and the resources or means of the person obliged to furnish it.

When can support be demanded? When shall payment be made?

Article 203 provides that the obligation to give support is demandable from
the time the person who has a right to receive it needs it for maintenance, but
it cannot be paid except from the date of judicial or extra-judicial demand.

Support pendente lite (while the case is being heard in court) may be claimed
according to the Rules of Court.

Payment must be made within the first five days of each corresponding
month. When the recipient dies, his heirs cannot be obliged to return what he
has received in advance.

What options, if any, are there for the person obliged to give support?

Article 204 provides that the person obliged to give support has the option to
fulfill the obligation either:

(1) by paying the allowance fixed, or

(2) by receiving and maintaining in the family dwelling the person who has a
right to receive support.
The second alternative cannot be used if in case there is a moral or legal
obstacle.

What rights, if any, do family relatives or strangers have when they
render support to the abandoned woman and her children?

Article 206 provides that when, without the knowledge of the person obliged
to give support, it is given by a stranger, the latter have a right to claim the
same from the former, unless it appears that he gave it without intention of
being reimbursed.

Article 207 also provides that when the person obliged to support another
unjustly refuses or fails to give support when urgently needed by the latter,
any third person may furnish support to the needy individual, with right of
reimbursement from the person obliged to give support. Article 207
particularly applies when the father or mother of a child under the age of
majority unjustly refuses to support or fails to give support to the child when
urgently needed.

What other laws provide assistance to women abandoned by their
husbands or live-in partners?

[1] Republic Act 8972 or the Solo Parents Welfare Act of 2000 provides
benefits to single parents. For more information, please refer to myprimer on
RA 8972 .

[2] Republic Act 9262 or the Anti-Violence Against Women and their Children
Act of 2004 provides under Section 5, paragraph (e), sub-paragraph (2) that
it is a crime to deprive or threaten to deprive the woman or her children of
financial support legally due her or her family, or to deliberately provide the
woman's children insufficient financial support.

How can this right under RA 9262 be availed of?

The abandoned woman or her children can ask the Family Court to issue a
Protection Order. Section 8, paragraph (g) of RA 9262 states that the
Protection Order will

direct the respondent to provide support to the woman and/or her child if
entitled to legal support. Notwithstanding other laws to the contrary, the court
shall order an appropriate percentage of the income or salary of the
respondent to be withheld regularly by the respondent's employer for the
same to be automatically remitted directly to the woman. Failure to remit
and/or withhold or any delay in the remittance of support to the woman and/or
her child without justifiable cause shall render the respondent or his employer
liable for indirect contempt of court.
Hold Departure Order under RA 9262

Section 36, Rule V of the Implementing Rules and Regulations of RA
9262 expressly allows the issuance of a Hold Departure Order against the
man; for example, if he is an OFW or a foreigner, so that he cannot leave the
country while the petition is being heard. Section 36 states:

Hold Departure Order. The counsel for the victim-survivor or applicant may
request the court for a Hold Departure Order in the application or petition for
protection order. The court shall expedite the process of issuance of a hold
departure order in cases prosecuted under the Act.
Section 36 of the IRR implements Section 37 of RA 9262. For more
information on this matter, please refer to my previous article on Protection
Orders.

What if the husband is working abroad and refuses to communicate
with and support the woman and her kids?

The problem here is that the husband is outside the jurisdiction of Philippine
courts. One solution can be, if the husband returns home to the Philippines
for whatever reason, the abandoned woman can immediately file a petition
for Protection Order under RA 9262 and at the same time ask the court to
issue a Hold Departure Order under Section 37.

Another long term solution is to ask Congress to pass a law or for the
appropriate government agencies (like the POEA) to implement regulations
similar to those imposed on Filipino seamen. As part of the employment
contract, a certain percentage of the husbands salary should be mandated to
be remitted to the family here in the Philippines.

How courts determine the amount of financial support in petitions for
legal separation, annulment of voidable marriage or declaration of
nullity of marriage

The Supreme Court Rule on Provisional Orders A.M. No. 02-11-12-SC
enumerates the procedures that our Family Court judges must follow on
these issues of custody and amount of financial support. Please take
note that:

(1) This Rule became effective in 2003 or before RA 9262 Anti-Violence
Against Women and Their Children Act of 2004 became effective in 2004;
and

(2) This Rule applies specifically to petitions for declaration of absolute nullity
of void marriage or for annulment of voidable marriage, or for legal
separation.

RA 9262 has its own Implementing Rules and Regulations and Rule on
Violence Against Women and Their Children A.M. No. 04-10-11-SC. The
speakers (active and retired Family Court judges) in the MCLE seminars I am
attending say that they also use the Rule on Provisional Orders as guidelines
in granting orders in RA 9262 cases whenever appropriate.

How the courts determine the amount of financial support for the
spouses

Article of 68 the Family Code states that the husband and wife are obliged to
live together, observe mutual love, respect and fidelity, and render mutual
help and support. Thus, a husband or wife may demand from the other
spouse financial support. Section 2 of the Supreme Court Rule on Provisional
Orders states:

In determining support for the spouses, the court may be guided by the
following rules:

(a) In the absence of adequate provisions in a written agreement between the
spouses, the spouses may be supported from the properties of the absolute
community or the conjugal partnership.

(b) The court may award support to either spouse in such amount and for
such period of time as the court may deem just and reasonable based on
their standard of living during the marriage.

(c) The court may likewise consider the following factors:

(1) whether the spouse seeking support is the custodian of a child whose
circumstances make it appropriate for that spouse not to seek outside
employment;

(2) the time necessary to acquire sufficient education and training to enable
the spouse seeking support to find appropriate employment, and that
spouses future earning capacity;

(3) the duration of the marriage;

(4) the comparative financial resources of the spouses, including their
comparative earning abilities in the labor market;

(5) the needs and obligations of each spouse;

(6) the contribution of each spouse to the marriage, including services
rendered in home-making, child care, education, and career building of the
other spouse;

(7) the age and health of the spouses;

(8) the physical and emotional conditions of the spouses;

(9) the ability of the supporting spouse to give support, taking into account
that spouses earning capacity, earned and unearned income, assets, and
standard of living; and

(10) any other factor the court may deem just and equitable.

(d) The Family Court may direct the deduction of the provisional support from
the salary of the spouse.
How the courts determine the amount of financial support for children,
whether legitimate or illegitimate

Article 174 and Article 176 of the Family Code both provide that
legitimate and illegitimate children, respectively, are entitled to support.
Section 3 of the Supreme Court Rule on Provisional Orders states:

The common children of the spouses shall be supported from the properties
of the absolute community or the conjugal partnership.

Subject to the sound discretion of the court, either parent or both may be
ordered to give an amount necessary for the support, maintenance, and
education of the child. It shall be in proportion to the resources or means of
the giver and to the necessities of the recipient.

In determining the amount of provisional support, the court may likewise
consider the following factors:

(1) the financial resources of the custodial and non-custodial parent and
those of the child;

(2) the physical and emotional health of the child and his or her special needs
and aptitudes;

(3) the standard of living the child has been accustomed to;

(4) the non-monetary contributions that the parents will make toward the care
and well-being of the child,

The Family Court may direct the deduction of the provisional support from the
salary of the parent.