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.
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