Just wanna share this informative article for those who are asking about Kris Aquino and James Yap On going annulment case... Below here the details.
The latest development is Kris wants Baby James surname changed from Yap to Cojuangco-Aquino. Is this possible?
When Baby James was born, there was a presumption of legitimacy, that since Kris and James got married, and Baby James was the product of such a union, his birth status was presumed legitimate. The very fact that the alleged father, James Yap, signed his birth certificate shows that Baby James earned the right to bear his father's surname, which is customary in Philippine civil law. (Legitimate children bear the surname of their legitimate father).
Baby James' status rests in the legitimacy of the marriage between Kris and James Yap. The question now is---is the marriage of Kris and James legal? Kris claims that it was not. James countered and said it is. Let us review both sides' argument.
Kris claims that their first marriage certificate states that they were married in Quezon City and the civil ceremony was officiated by Mayor Sonny Belmonte. However, it turned out, it was not Belmonte who officiated the marriage, but a Protestant minister.
Under our Family Code, for a marriage to be legitimate, it has to follow certain requisites, namely:
1. The people involved in the marriage are legally permitted to enter into contractual obligations, since a marriage is a contract.
2. The marriage was solemnized by someone authorized by law or by custom
3. The marriage took place within the period allowed by law, as stated in a marriage license procured prior to the marriage ceremony.
4. The people involved in the marriage are not barred by law to enter into it. Meaning, they are not married to some one else prior to the marriage.
Kris alleged that the solemnizing officer was not authorized by law to marry them, since the alleged pastor was actually a Protestant preacher. Under the law, in order for a minister to be allowed to marry someone, he has to be the head of the religious group or sect where the couple belonged. Kris and James are Catholics. Therefore, the preacher has no authority over them.
Some civil law professors say, this is not a very strong case to grant an annulment since this is a mere irregularity. Others, however, say, it is material and could affect the outcome of the marriage, since the marriage should be solemnized by someone cloaked with authority.
Granting, however, that this civil ceremony was a sham, then, says James Yap, it was actually cured by the second marriage contracted between him and Kris shortly afterwards. Now, it remains to be seen if that second marriage was contracted with a valid marriage license. The first marriage license for the first marriage does not apply to the second marriage ceremony, since under the law, a license applies only to one marriage. If both did not secure a marriage license for the second marriage ceremony, it is deemed void ab initio or void from the very beginning.
Now, what if the marriage between Kris and James was indeed, void from the beginning, what is the effect of such a marriage to the birth status of Baby James?
Of course, Baby James is deemed illegitimate and must bear the surname of the mother, until the age of 18 years old, where he is then asked if he wants to bear the surname of his father. Under the law authored by Senator Ramon Bong Revilla, illegitimate children now enjoy the same rights as legitimate children, and one of them, the right to bear the surname of his biological father. The father should consent to it by affixing his signature in the birth certificate of the child. If there is no consent, then, the child bears the surname of his legal custodian, which, in this case, is his biological mother until he reaches maturity. When he reaches maturity, it is all up to him if he chooses to retain using his mother's surname or elect to change it and bear the surname of his father.
Now, how about the regime of property governing the relationship of Kris and James? Does the absolute conjugal property exists in their case or that of the regime of property gains?
Under our Civil Code, the right property regime that governs the marriage of Kris and James is that of co-ownership property regime realized under Article 147 of the Family Code. Under such a property regime, all the fruits of their labor during the time of their marriage shall be presumed to have been jointly contributed.
If reports are true that during the marriage between Kris and Yap, more than 200 million pesos were generated from the said relationship, then, the amount will actually be partitioned in equal shares, 50% or 100 million to Kris and 100 million to James Yap. The partition of the said property shall commence shortly after the grant of a court decision annulling their marriage. That is, if there is no pre-nuptial agreement between the two.
GRanting, for the sake of argument, that there was a pre-nup, will this govern the property relations of the two during the marriage? No. A pre-nup takes effect only if there is a consummation of a marriage. Since there was no consummation, and the presumption of law is that there was cohabitation without the benefit of marriage, then, Article 147 of the Family Code applies. Kris has to agree to partition the property regime between her and James Yap.
Source: http://newphilrevolution.blogspot.com/2010/08/case-of-kris-aquino-james-yap-annulment.html
Tuesday, August 24, 2010
Friday, September 11, 2009
Gayness not reason to annul marriage -- Supreme Court
I wanted to share what I have read from the particular Philippines daily Inquirer by Jerome Aning.
Filed Under: Laws, Justice & Rights, Gender Issues, Human Rights, Family
MANILA, Philippines -- Being gay is not a valid ground to have one's marriage annulled; hiding such a fact is.
The Supreme Court made this ruling as it reversed a decision by the Las Piñas City Regional Trial Court to annul a couple's 11-year marriage after the wife claimed her husband was a homosexual.
In a 21-page ruling dated August 28, the Court's 3rd Division said the lower court erred in declaring the marriage void from the start because it took into account solely the husband's alleged homosexuality without being presented with proof that he had concealed it from his wife.
In restoring the marriage of the couple (whose identities the Inquirer is withholding for the sake of their minor children), the Court said the lower court misinterpreted Article 46 of the Family Code of the Philippines that allows annulment when the consent of either party is obtained by fraud, such as concealment of homosexuality.
“Nowhere in the [RTC's] decision was it proven by preponderance of evidence that [the husband] was homosexual at the onset of his marriage and that he deliberately hid such a fact from his wife. It is the concealment that vitiates the consent of the innocent party [and] presupposes bad faith and intent to defraud the other party in giving consent to the marriage,” said the Supreme Court’s ruling, written by Justice Ruben Reyes.
Court records showed the wife sued for annulment, accusing her husband of being psychologically incapacitated to perform his marital obligations. The couple, both medical practitioners, were sweethearts for three years before getting married in 1989.
During the trial, the wife described her husband as a “harsh disciplinarian, unreasonably meticulous, and easily angered," adding his alleged cruelty to their children was a cause of their fights. She also complained that he showed lavish affection to his mother and was dependent on the latter's decisions.
Further adding to her woe s was his alleged homosexuality. She said she was suspicious about his “peculiar closeness to male companions.” She also said she caught him manifesting affection to a male caller, found several pornographic homosexual materials in his possession, and saw him kissing another man on the lips.
When she confronted him, he denied everything. She decided to leave their conjugal home and took their children with her. He then stopped giving support to their children.
The wife presented in the trial a clinical psychologist who interviewed the husband and their children and reached the same conclusion that he was truly psychologically incapacitated.
The husband, for his part, denied all his wife's allegations, adding that their marriage was “generally harmonious” so he was surprised by the suit.
He said he never maltreated their children. He added that he was close to his mother because she was already growing old and there was nothing wrong to return the love and affection of the one who reared and looked after him.
He claimed his wife’s jealousy drove him to avoid female friends but instead his wife used this to “conjure” stories about his sexual preferences. He also denied kissing another man or owning homosexual pornographic magazines and videotapes.
He countered that the true cause of his wife's hostility was his decision to convert his lying-in clinic into a hospital that competed with the one owned by his wife's family.
The lower court judge, siding with the wife, declared the marriage null and void in 2005. The husband's share of the conjugal property was forfeited in favor his children, to whom he was also ordered to give monthly financial support.
The Supreme Court, however, disagreed with the ruling, saying the judge erroneously considered the public perception of the husband's sexual preference without corroboration of witnesses.
Also, the judge took cognizance of the husband's peculiarities and interpreted it against his sexuality.
“What [the wife] attempted to demonstrate were [her husband's] homosexual tendencies by citing overt acts generally predominant among homosexual individuals. She wanted to prove that the perceived homosexuality rendered [him] incapable of fulfilling essential marital obligations,” the Court ruled.
The high court said Article 46 of the Family Code clearly showed that concealment of homosexuality was among the circumstances constituting fraud for which a marriage may be annulled.
“Concealment in this case is not simply a blanket denial but one that is constitutive of fraud. It is this fundamental element that [the wife] failed to prove. The burden of proof to show the nullity of the marriage rests on [her]. Sadly, she failed to discharge this onus,” the high court said.
Unlike in the United States where homosexuality is a basis for divorce, the high court said that homosexuality is only a ground for legal separation in the Philippines.
“The Court is mindful of the constitutional policy to protect and strengthen the family as the basic autonomous social institution and marriage as the foundation of the family. The State and the public have vital interest in the maintenance and preservation of these social institutions against desecration by fabricated evidence. Thus, any doubt should be resolved in favor of the validity of marriage,” the high court said.
The Court also berated the husband's lawyer for filing a petition to annul judgment of the RTC before the Court of Appeals, instead of an ordinary appeal. When the appeals court denied the petition because of the wrong remedy, the husband elevated the case to the Supreme Court.
The Court said it found it “prudent” to relax the rules and allowed the case to prosper by entertaining it as a certiorari petition, so that the parties may attain the ends of justice.
Filed Under: Laws, Justice & Rights, Gender Issues, Human Rights, Family
MANILA, Philippines -- Being gay is not a valid ground to have one's marriage annulled; hiding such a fact is.
The Supreme Court made this ruling as it reversed a decision by the Las Piñas City Regional Trial Court to annul a couple's 11-year marriage after the wife claimed her husband was a homosexual.
In a 21-page ruling dated August 28, the Court's 3rd Division said the lower court erred in declaring the marriage void from the start because it took into account solely the husband's alleged homosexuality without being presented with proof that he had concealed it from his wife.
In restoring the marriage of the couple (whose identities the Inquirer is withholding for the sake of their minor children), the Court said the lower court misinterpreted Article 46 of the Family Code of the Philippines that allows annulment when the consent of either party is obtained by fraud, such as concealment of homosexuality.
“Nowhere in the [RTC's] decision was it proven by preponderance of evidence that [the husband] was homosexual at the onset of his marriage and that he deliberately hid such a fact from his wife. It is the concealment that vitiates the consent of the innocent party [and] presupposes bad faith and intent to defraud the other party in giving consent to the marriage,” said the Supreme Court’s ruling, written by Justice Ruben Reyes.
Court records showed the wife sued for annulment, accusing her husband of being psychologically incapacitated to perform his marital obligations. The couple, both medical practitioners, were sweethearts for three years before getting married in 1989.
During the trial, the wife described her husband as a “harsh disciplinarian, unreasonably meticulous, and easily angered," adding his alleged cruelty to their children was a cause of their fights. She also complained that he showed lavish affection to his mother and was dependent on the latter's decisions.
Further adding to her woe s was his alleged homosexuality. She said she was suspicious about his “peculiar closeness to male companions.” She also said she caught him manifesting affection to a male caller, found several pornographic homosexual materials in his possession, and saw him kissing another man on the lips.
When she confronted him, he denied everything. She decided to leave their conjugal home and took their children with her. He then stopped giving support to their children.
The wife presented in the trial a clinical psychologist who interviewed the husband and their children and reached the same conclusion that he was truly psychologically incapacitated.
The husband, for his part, denied all his wife's allegations, adding that their marriage was “generally harmonious” so he was surprised by the suit.
He said he never maltreated their children. He added that he was close to his mother because she was already growing old and there was nothing wrong to return the love and affection of the one who reared and looked after him.
He claimed his wife’s jealousy drove him to avoid female friends but instead his wife used this to “conjure” stories about his sexual preferences. He also denied kissing another man or owning homosexual pornographic magazines and videotapes.
He countered that the true cause of his wife's hostility was his decision to convert his lying-in clinic into a hospital that competed with the one owned by his wife's family.
The lower court judge, siding with the wife, declared the marriage null and void in 2005. The husband's share of the conjugal property was forfeited in favor his children, to whom he was also ordered to give monthly financial support.
The Supreme Court, however, disagreed with the ruling, saying the judge erroneously considered the public perception of the husband's sexual preference without corroboration of witnesses.
Also, the judge took cognizance of the husband's peculiarities and interpreted it against his sexuality.
“What [the wife] attempted to demonstrate were [her husband's] homosexual tendencies by citing overt acts generally predominant among homosexual individuals. She wanted to prove that the perceived homosexuality rendered [him] incapable of fulfilling essential marital obligations,” the Court ruled.
The high court said Article 46 of the Family Code clearly showed that concealment of homosexuality was among the circumstances constituting fraud for which a marriage may be annulled.
“Concealment in this case is not simply a blanket denial but one that is constitutive of fraud. It is this fundamental element that [the wife] failed to prove. The burden of proof to show the nullity of the marriage rests on [her]. Sadly, she failed to discharge this onus,” the high court said.
Unlike in the United States where homosexuality is a basis for divorce, the high court said that homosexuality is only a ground for legal separation in the Philippines.
“The Court is mindful of the constitutional policy to protect and strengthen the family as the basic autonomous social institution and marriage as the foundation of the family. The State and the public have vital interest in the maintenance and preservation of these social institutions against desecration by fabricated evidence. Thus, any doubt should be resolved in favor of the validity of marriage,” the high court said.
The Court also berated the husband's lawyer for filing a petition to annul judgment of the RTC before the Court of Appeals, instead of an ordinary appeal. When the appeals court denied the petition because of the wrong remedy, the husband elevated the case to the Supreme Court.
The Court said it found it “prudent” to relax the rules and allowed the case to prosper by entertaining it as a certiorari petition, so that the parties may attain the ends of justice.
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