Monday, May 16, 2016

The Marriage Series, Part 6: Dissolution of Absolute Community

How long will the Absolute Community Regime last?  According to the Family Code, the absolute community terminates, or ends:  

          (a) upon the death of either spouse; 

          (b) where there is a decree of legal separation; 

          (c) when the marriage is annulled or declared void; and 

          (d) in case of judicial separation of property during the marriage.

Does the Absolute Community end when a husband and wife physically separate, but do not undergo proceedings for legal separation or annulment? Generally, the answer is no. 

However, the law provides for certain exceptions:

     (a) When the spouse who leaves the conjugal home or refuses to live therein, without just cause, shall not have the right to be supported.

(b) When the consent of one spouse to any transaction of the other is required by law, judicial authorization shall be obtained in a summary proceeding.

(c) In the absence of sufficient community property, the separate property of both spouses shall be solidarily liable for the support of the family.  

The spouse present shall, upon proper petition in a summary proceeding, be given judicial authority to administer or encumber any specific separate property of the other spouse and use the fruits or proceeds thereof to satisfy the latter’s share.

What is the remedy of one spouse where the other abandons the other, or fails to comply with his or her marital, parental or property relations obligations to the family? Article 101 of the Family Code states that the aggrieved spouse may petition the court for receivership, for judicial separation of property or for authority to be the sole administrator of the absolute community, subject to such precautionary conditions as the court may impose.

When is one spouse deemed to have abandoned the other? The law states that a spouse is deemed to have abandoned the other when he or she has left the conjugal dwelling without any intention of returning.  

The spouse who has left the conjugal dwelling for a period of 3 months, or has failed within the same period to give any information as to his or her whereabouts shall be prima facie presumed to have no intention of returning to the conjugal dwelling.

Friday, May 13, 2016

The Marriage Series, Part 5: Administration and Enjoyment of the Community Property

Who administers and gets to enjoy the community property? The Family Code provides that the administration and enjoyment of the community property shall belong to both spouses jointly. This means that decisions regarding the management and use of the community property must be made by the spouses together.

What if they disagree on something? The Family Code states that the husband’s decision shall prevail, subject to recourse to the court by the wife for a proper remedy, which must be availed of within five years from the date of the the contract implementing such decision.

What happens if one of the spouses cannot participate in the administration of the common properties? According to the Family Code, in the event that one spouse is incapacitated or otherwise unable to participate in the administration of the common properties, the other spouse may assume sole powers of administration. The Family Code goes on to state that these powers do not include the powers of disposition or encumbrance without the authority of the court or the written consent of the other spouse. This means that the spouse who administers the community property cannot sell or donate the community property, neither can he or she use the community property as collateral for a loan or mortgage the community property, without court authority or the other spouse’s written consent.

What happens if the administering spouse sells or mortgages the community property without court authority or the other spouse’s written consent?  The disposition of the property will be void. The transaction will be construed as a continuing offer on the part of the consenting spouse and the third person, and may be perfected as a binding contract upon the acceptance by the other spouse or  authorization by the court before the offer is withdrawn by either or both spouses (Article 96, Family Code). In other words, if the administering spouse sells or mortgages the community property without court authority or the consent of the other spouse, the sale or the mortgage is considered void. The law, however, considers the transaction itself to be a continuing offer for the sale or the mortgage of the community property, and may be perfected as a binding contract once court authority or the written consent of the other spouse is obtained, before one or both of the spouses withdraws the offer.

Can a spouse make a donation from the community property without the consent of the other spouse? Generally, no. As an exception, however, a spouse can make moderate donations from the community property for charity or on occasions of family rejoicing or family distress, without the consent of the other spouse (Article 98, Family Code).

Monday, May 2, 2016

Violence Against Women and Children

VIOLENCE AGAINST WOMEN AND CHILDREN (VAWC). We constantly hear and see these words mentioned over and over again in news reports and in newspapers. But what do we really know about VAWC? Here are the basics, as taken from Republic Act 9262, or the Anti-Violence Against Women and Their Children Act of 2004.

Violence against women and their children (“VAWC”) is defined as any act or a series of acts committed by any person:

     (1) against a woman who is his wife or his former wife, or 

     (2) against a woman with whom the person has or had a sexual or dating relationship, or  with whom he has a common child, or 

     (3) against her child whether legitimate or illegitimate.

The act or acts are committed by the perpetrator within or without the family abode, which result in or is likely to result in physical, sexual, psychological harm or suffering, or economic abuse including threats of such acts, battery, assault, coercion, harassment or arbitrary deprivation of liberty.

VAWC includes, but is not limited to, the following:

     1. Physical Violence, which refers to acts that include bodily or physical harm;

     2. Sexual violence, which refers to an act which is sexual in nature, committed against a woman or her child. It includes, but is not limited to:

          a) Rape, sexual harassment, acts of lasciviousness, treating a woman or her child as a sex object, making demeaning and sexually suggestive remarks, physically attacking the sexual parts of the victim's body, forcing her/him to watch obscene publications and indecent shows or forcing the woman or her child to do indecent acts and/or make films thereof, forcing the wife and mistress/lover to live in the conjugal home or sleep together in the same room with the abuser;

          b) Acts causing or attempting to cause the victim to engage in any sexual activity by force, threat of force, physical or other harm or threat of physical or other harm or coercion;

          c) Prostituting the woman or child.

     3. Psychological violence, which refers to acts or omissions causing or likely to cause mental or emotional suffering of the victim such as but not limited to intimidation, harassment, stalking, damage to property, public ridicule or humiliation, repeated verbal abuse and marital infidelity. It includes causing or allowing the victim to witness the physical, sexual or psychological abuse of a member of the family to which the victim belongs, or to witness pornography in any form or to witness abusive injury to pets or to unlawful or unwanted deprivation of the right to custody and/or visitation of common children.

     4. Economic abuse, which refers to acts that make or attempt to make a woman financially dependent which includes, but is not limited to the following:

          a) Withdrawal of financial support or preventing the victim from engaging in any legitimate profession, occupation, business or activity, except in cases wherein the other spouse/partner objects on valid, serious and moral grounds as defined in Article 73 of the Family Code;

          b) Deprivation or threat of deprivation of financial resources and the right to the use and enjoyment of the conjugal, community or property owned in common;

          c) Destroying household property;

          d) Controlling the victims' own money or properties or solely controlling the conjugal money or properties.

What can a victim of VAWC do to protect herself or her child?

The victim can apply for a Barangay Protection Order (BPO), a Temporary Protection Order (TPO), or a Permanent Protection Order (PPO).

The relief granted under a protection order serves the purpose of safeguarding the victim from further harm, minimizing any disruption in the victim's daily life, and facilitating the opportunity and ability of the victim to independently regain control over her life. The provisions of the protection order shall be enforced by law enforcement agencies. 

Where to Apply for a Protection Order
Applications for BPOs shall follow the rules on venue under Sec. 409 of the Local Government Code of 1991 and its implementing rules and regulations. 
Sec. 409 of the Local Government Code provides:
SEC. 409. Venue. - (a) Disputes between persons actually residing in the same barangay shall be brought for amicable settlement before the lupon of said barangay.
(b) Those involving actual residents of different barangays within the same city or municipality shall be brought in the barangay where the respondent or any of the respondents actually resides, at the election of the complainant.
(c) All disputes involving real property or any interest therein shall be brought in the barangay where the real property or the larger portion thereof is situated.
(d) Those arising at the workplace where the contending parties are employed or at the institution where such parties are enrolled for study, shall be brought in the barangay where such workplace or institution is located. Objections to venue shall be raised in the mediation proceedings before the punong barangay; otherwise, the same shall be deemed waived. Any legal question which may confront the punong barangay in resolving objections to venue herein referred to may be submitted to the Secretary of Justice, or his duly designated representative, whose ruling thereon shall be binding.
An application for a TPO or PPO may be filed in the regional trial court, metropolitan trial court, municipal trial court, municipal circuit trial court with territorial jurisdiction over the place of residence of the petitioner: provided, however, that if a family court exists in the place of residence of the petitioner, the application shall be filed with that court.
Who may file Petition for Protection Orders
A petition for protection order may be filed by any of the following:
     (a) The offended party;
     (b) Parents or guardians of the offended party;
      (c) Ascendants, descendants or collateral relatives within the fourth civil degree of consanguinity or affinity;
     (d) Officers or social workers of the DSWD or social workers of local government units (LGUs);
     (e) Police officers, preferably those in charge of women and children's desks;
     (f) Punong Barangay or Barangay Kagawad;
     (g) Lawyer, counselor, therapist or healthcare provider of the petitioner;
     (h) At least two (2) concerned responsible citizens of the city or municipality where the violence against women and their children occurred and who has personal knowledge of the offense committed.