Wednesday, December 9, 2009

Applying for a Marriage License

Marriage license is different from marriage certificate. The former is a license to marry, while the latter is proof of the marriage. You get a marriage license first before you can enter into a contract of marriage, evidenced by the marriage certificate.

The Family Code of the Philippines cite instances where a marriage license is required:

Art. 9. A marriage license shall be issued by the local civil registrar of the city or municipality where either contracting party habitually resides, except in marriages where no license is required in accordance with Chapter 2 of this Title.

Art. 11. Where a marriage license is required, each of the contracting parties shall file separately a sworn application for such license with the proper local civil registrar...

Art. 12. (Other requirements:) original birth certificates or... baptismal certificates... or (joint affidavits)...

Art. 13. ...the death certificate of the deceased spouse or the judicial decree of the absolute divorce, or the judicial decree of annulment or declaration of nullity of his or her previous marriage... (or) an affidavit setting forth this circumstance and his or her actual civil status and the name and date of death of the deceased spouse.

Art. 14. In case either or both of the contracting parties... between the ages of eighteen and twenty-one (18-21 years old), they shall... exhibit... the consent to their marriage of their father, mother, surviving parent or guardian, or persons having legal charge of them, in the order mentioned.

Art. 15. Any contracting party between the age of twenty-one and twenty-five (21-25 years old) shall be obliged to ask their parents or guardian for advice upon the intended marriage... (If not), the marriage license shall not be issued till after three months following the completion of the publication of the application therefor...

Art. 20. The license shall be valid in any part of the Philippines for a period of one hundred twenty days from the date of issue...

Art. 21. When either or both of the contracting parties are citizens of a foreign country... to submit a certificate of legal capacity to contract marriage, issued by their respective diplomatic or consular officials... Stateless persons or refugees from other countries shall, in lieu of the certificate of legal capacity herein required, submit an affidavit stating the circumstances...

Marriages Exempted from License Requirement

Art. 27. the point of death (articulo mortis)...

Art. 28. ...residence of either party... no means of transportation...

Art. 31. A marriage in articulo mortis between passengers or crew members may also be solemnized by a ship captain or by an airplane pilot...

Art. 32. A military commander of a unit, who is a commissioned officer, shall likewise have authority to solemnize marriages in articulo mortis between persons within the zone of military operation, whether members of the armed forces or civilians.

Art. 33. Marriages among Muslims or among members of the ethnic cultural communities may be performed validly without the necessity of marriage license, provided they are solemnized in accordance with their customs, rites or practices.

Art. 34. No license shall be necessary for the marriage of a man and a woman who have lived together as husband and wife for at least five years and without any legal impediment to marry each other...

Filing a Case Under The Rule on Small Claims: Salient Features

The Rule on Small Claims that has become effective on October 1, 2008 has greatly simplified what seems to be a complex and lengthy legal process to laymen.

In other advanced countries like Canada which introduced this concept to our legal system, the Rule on Small Claims has been in use for quite some time, unclogging the courts of small cases through quick resolutions.

Even in the magical world of Ella Enchanted, her elf companion was ostracized by his fellow elves who are naturally entertainers because he wanted to be a lawyer. Because of his small stature, he was taunted to be only able to appear in the small claims court.

But the parties -- plaintiff and defendant alike -- who have undergone the small claims system have given a sigh of relief because of its relatively fast resolution in a matter of months, unlike in the old days when claims PhP100,000.00 and below take years and humongous attorney's fees to settle until there is nothing really left for a PhP50,000.00 claim.

In fact, the Rule on Small Claims specifically shuns the presence of lawyers in the small claims court.

Section 17 of the Rule on Small Claims provides, "No attorney shall appear in behalf of or represent a party at the hearing, unless the attorney is the plaintiff or defendant."

Furthermore, "If the court determines that a party cannot properly present his/her claim or defense and needs assistance, the court may, in its discretion, allow another individual who is not an attorney to assist that party upon the latter’s consent" (italics supplied).

Wow! Apparently, this is where people like me come in! ;-)

The procedure is really as easy as pie:

1. File two copies of the duly accomplished and verified Statement of Claim which is readily available at the court where you are to file your small claims case (Section 5, Rule on Small Claims);

2. Pay PhP2,700.00 filing fee and process server's fee (PhP1,000.00 which is already included in the PhP2,700.00) [the PhP1,000.00 is even refundable if it is not completely used up by the process server for his transportation. In our court, however, the process servers do not bother the laborious process (they say it's more complicated than filing a small claims case!) of claiming their transportation expenses from the PhP1,000.00 allowance, thus this can be withdrawn wholly when the case is terminated] (Section 8, Rule on Small Claims);

3. Summons (Section 10, Rule on Small Claims);

4. Response within 10 days, non-extendible (Section 11, Rule on Small Claims);

5. Note the prohibited pleadings (Section 14, Rule on Small Claims);

6. Appearance for Judicial Dispute Resolution (Section 16, Rule on Small Claims);

7. One-time postponement only (Section 19, Rule on Small Claims);

8. One-day hearing upon failure of JDR (Section 22, Rule on Small Claims);

9. Same-day decision which is FINAL and UNAPPEALABLE (Section 23, Rule on Small Claims);

10. Execution of decision upon motion (Section 24, Rule on Small Claims).

My personal experience on this law:

Funny, I had to wait for some two months or until the Decision was finally served to the other party before I filed for a Motion for Execution when the Rule is silent on this matter.

Funny, the other party recently filed an appeal obviously assisted by counsel inspite of the glaring FINAL and UNAPPEALABLE provision.

Hmmmmm.... I just wondered how much more did the other party had to pay for the mistake of filing the appeal obviously fueled by simple pride not to accede to the small claims court's sound judgment.

If only she had accepted the hand of friendship I have offered to her in open court, because settlement should have been the objective of the small claims court.

Monday, December 7, 2009

Marriage Requirements of a Widower Under the Family Code of the Philippines

Winsome Widower dude comes up to me asking for the requirements for a "secret marriage".

Firstly, there is no such thing as a "secret marriage". Just as nothing is secret from God, no marriage is secret from the law. Secret marriage is only secret from your friends and relatives, especially the snoopy sort. Winsome Widower apparently would like to have a quiet wedding away from all the friends he has won from his being winsomely.

Having settled that issue, the following are the marriage requirements Winsome Widower must accomplish under the Family Code of the Philippines (Chapter 1):

Art. 2. No marriage shall be valid, unless these essential requisites are present:

(1) Legal capacity of the contracting parties who must be a male and a female.

- ages 18 to 21 must secure a signed Parental Consent form.
- ages 22 to 25 must secure a signed Parental Advice form.
- ages 26 and above are free to marry without parental guidance, but parties ages 30 and above must secure a CENOMAR (Certificate of No Marriage) from the National Statistics Office (new requirement).
- foreigners must also get a CENOMAR and proof of legal capacity to marry from his/her embassy.
- no same sex marriage.

(2) Consent freely given in the presence of the solemnizing officer.

- as when they say, "I do."

Art. 3. The formal requisites of marriage are:

(1) Authority of the solemnizing officer.

- As long as the license of the priest, pastor, imam, judge, mayor, ship captain is valid (Note: at least one of the parties must be a member of the church of the priest, pastor, imam, or any authorized religious solemnizing officer; the judge can only wed the parties within his jurisdiction; and the ship captain can only marry the parties at the point of death, or articulo mortis).

(2) A valid marriage license except in the cases provided for in Chapter 2 of this Title.

- No need if living together for more than five years (execute an Affidavit of Cohabitation).

(3) A marriage ceremony which takes place with the appearance of the contracting parties before the solemnizing officer and their personal declaration that they take each other as husband and wife in the presence of not less than two witnesses of legal age.

- Whether simple or grand, there must be a ceremony (not really religious ritual) requiring the presence of at least five main characters: the groom, the bride, the solemnizing officer, and two witnesses of legal age. If Winsome Widower would like to have the matter kept a secret, these five people including the one who will prepare the papers (may or may not be one of the witnesses) must zip it.

Art. 5. Any male or female of the age of eighteen years or upwards not under any of the impediments mentioned in Articles 37 (incestuous and void from the beginning such as brother and sister, or ascendant and descendant) and 38 (void from the beginning for reasons of public policy such as first cousins, or family members other than in Article 37), may contract marriage.

Art. 6. No prescribed form or religious rite for the solemnization of the marriage is required. It shall be necessary, however, for the contracting parties to appear personally before the solemnizing officer...

It must be remembered that:

Article 1. Marriage is a special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life. It is the foundation of the family and an inviolable social institution whose nature, consequences, and incidents are governed by law and not subject to stipulation, except that marriage settlements may fix the property relations during the marriage within the limits provided by this Code.

- Philippine Law still believes in the vow, "'Til death do us part." And "Let no man put asunder." Thus, there is no divorce (as against an annulment).

- Lastly, in the case of Winsome Widower, considering that the death of his spouse terminated his first marriage, he can already remarry (after one year according to Philippine mourning tradition but this is not really required by Law, however, in the case of widows, she must observe the 300-day rule before remarrying for purposes of eliminating the issue of doubtful paternity) but, as an added requirement for widowers like him, he must present also the Certificate of Death of his dearly departed first wife in order for him to comply with the Family Code of the Philippine's marriage requirements.

Friday, November 13, 2009

The Right to Remain Silent: Taking It Too Far

The right to remain silent in the Philippine criminal justice system is derived from a United States Supreme Court in the case of Miranda vs. Arizona, thus the term "Miranda Rights".

The Miranda Doctrine requires that:

(a) any person under custodial investigation has the right to remain silent;

(b) anything he says can and will be used against him in a court of law;

(c) he has the right to talk to an attorney before being questioned and to have his counsel present when being questioned; and

(d) if he cannot afford an attorney, one will be provided before any questioning if he so desires.

Article 3, Section 12 (1) of the Philippine Constitution provides, "Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel."

Philippine law has expounded the Miranda Doctrine by providing for more stringent standards: the accused's right to counsel specifies a competent and independent counsel preferably of the suspect’s own choice. Waiver of the right to counsel must be done in writing, and in the presence of counsel. Any confession or admission obtained in violation of the requirements under the Miranda Rights shall be inadmissible in evidence against the accused (Art. 3, Sec. 12 [3], of the Philippine Constitution).

However, keeping one's mouth completely shut in all stages of reconciliation efforts, tacitly invoking the right to remain silent, is taking it too far.

Running away is flight, a sign of guilt.

Not giving your exact address in your Personal Information Sheet, is making a mockery of the justice system you were once a part of.

Paying for surety bond premium (30% of the PhP24,000.00 bail bond for Violation of R.A. 9262), is like throwing your money away when all the while you never gave your child any support.

All because, you'd rather lie. You'd rather keep your stupid right to remain silent.

Monday, October 12, 2009

Intellectual Property Rights of An Artist

Ian Valladarez has earned a name for himself in the local art scene as an authority in wire sculpture. He also paints and does crafts for sale at Balay Negrense, a popular museum in Silay City, Negros Occidental where he is based.

He told me about his problem regarding another artist selling keychains with a design allegedly similar to his trademark designs sold at the museum gift shop. The artist is reportedly peddling similar keychains outside the museum premises at 25% of the museum price. So Ian asked: what is his remedy against this situation?

Sadly, many artists and people in the Philippines are not aware of Intellectual Property Rights. And if so, they freely copy other people's works and present them as their original work hoping nobody would find out. Or, if they're ever find out, a court litigation would be very expensive the offended party couldn't even start filing a complaint. Like so much ado over a copycat keychain.

But artists, of all people, should realize how important it is to come up with an original. No matter how masterful the strokes are, copying an Amorsolo or a Valladarez is still not something to be proud of.

What stops artists like Ian from asserting their copyright over their artistic work is the fact that most of these works of art, although their original creations, are not registered under the Intellectual Property Office of the Philippines.

Section 172 of Republic Act No. 8293, known as the Intellectual Property Code of the Philippines enumerate the literary and artistic works protected by the law as original works from the moment of their creation. Meaning, an original work needs no registration because it is already considered an original from the moment of its creation.

As the artist signs his work and dates it, he is signifying his ownership over that creation. Nobody else is allowed to alter, change or modify it but the creator himself. His copyright over the work is protected under Section 177 of the copyright law. A copy or economic right is simply the author's right to carry out, authorize or prevent other people from unauthorized use or sale of his intellectual property.

The only exception is the "fair use" of a copyrighted work under Section 185 which allows the fair use of the copyrighted work for news reporting, teaching, research, and similar purposes.

Section 216 provides for remedies of the private complainant against the copycat for the infringement or unauthorized copying or use of his work such as an injunction, damages, impounding, and destruction of the infringing works.

A violation of this law is criminal in nature which may subject the offender to imprisonment from one year to 9 years plus fine from P50,000.00 to P1,500,000.00 depending on the number of offenses committed.

A complainant may personally or through a representative file his Affidavit of Evidence under Section 218 stating:

(a.) That at the time specified therein, a copyright subsisted in the work or subject matter;

(b.) That he or the person named therein is the owner of the copyright; and

(c.) That the copy of the work or other subject matter annexed to the Affidavit is a true copy thereof.

The offender shall enjoy the presumption that he is the owner of the copyright subject matter of the controversy until proven otherwise.

Moral of the story: an artist must rise to the challenge of giving his best to give to the world an original creation. A copycat will never earn a name for himself as an artist; worse, he will lose it, as a con artist.

Computerization of the 2010 Philippine National Elections: Can Juan Dela Cruz Keep Up With the Times?

The 2010 Philippine presidential elections is going to be a whole new ball game. With the computerization of voting, many Filipino voters, majority of whom are in the grassroots level and could barely fill out a form, will be in a daze as to how this new election process is going to be carried out.

A COMELEC Officer friend of mine who refuses to be named tells me that they are now holding seminars and orientation of this new system. They expect a total rewriting of Sec.211 of the Election Code, which provides for Rules for the Appreciation of Ballots. This provision is addressed to the members of the board of election inspectors, who are people, not computers.

With the advent of machine counters, an entirely new jurisprudence is yet to be laid down by the High Court. Election controversies are bad enough using manual counting. How much more when no human eye can see how the computers do it, ignoring the well-established rules such as idem sonans (wrong spelling, correct sound is counted to the candidate whose name sounds like what was written) and neighborhood rule (voted candidate's name is written on another space or line but is near or adjacent to the space provided for his name to be written counted in his favor).

In an age-long electoral process where the number one barometer of a person's vote is his intent, a computer counter does not possess the human discretion or discernment Sec. 211 obviously prescribes.

During the Dark Ages of Philippine elections, candidates opt for a mass-friendly name for easy recall and spelling when Juan Dela Cruz writes his candidate's name.

In 2010 however, the voters will be required to use a specially provided pen. Any other ink or pencil marking is no longer allowed lest the computer will automatically nullify the ballot. The ballot will look like a National College Entrance Exam testing sheet. How many ordinary Filipinos have even taken such an exam?

It is going to be multiple choice. There will be no more need to write the candidate's name. The voter will just have to shade in his choice within the oval corresponding to the candidate's name. Any erasure will invalidate the whole ballot. Even the average Filipino makes mistakes filling out forms.

Even the sample ballots usually given out by candidates before or during election day will look different. They will just have to indicate to their illiterate voters the particular area where their names are located. The poor voter who can barely read who mistakenly shaded the rival candidate's oval will never have his intent known simply because he shaded the wrong area.

So I must conclude that the coming elections is no longer an opportunity for the masses to be heard. This is a game for the techno-savvy, for the educated. Vote-buying may finally be outmoded. Enter the hackers.

Tuesday, September 29, 2009

Remedial Law Bite-Size Reviewer #1


1. Rules of Court
a. 1997 Rules of Civil Procedure
b. Revised Rules of Criminal Procedure (Dec.1, 2000)
c. Rules on Evidence
d. Rules on Special Proceedings

2. The 1991 Revised Rules on Summary Procedure

3. Local Government Code on Conciliation Procedure
(Book III, Title I, Chapter 7)

4. The Judiciary Reorganization Act of 1980, BP Blg.129 as amended by RA7691 (emphasis on jurisdiction)

Thursday, September 24, 2009

Philippine Legal Research

This site will help you in your legal research in Philippine laws. Post questions and suggestions as comments to help build this site.

For now we will start with Philippine Legal forms.

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