NARCIDA LAW OFFICE AND NOTARIAL SERVICES

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LEGAL OPINION
October 3, 2012 Rm. 4, Baguio Suites, Legarda Road Baguio City

Mr. and Mrs. Martin Ty

Greetings! I am sending this letter regarding the legal advice and opinion that you have requested. The facts that I have gathered from you and the documents you have provided, are as follows: Kay Ty, your daughter, has been legally married to Tom Cruz. They were married on February 14, 2005 in Baguio City, after having been in a relationship for 7 years. In 2007 they begot a child and named her Saffron. Kay is a Vice-President of Finance in a Baguio City branch of a bank. She is a career-oriented, ambitious and driven, while Tom is a team leader in a legal transcription firm. Their family is well established financially because of Kays job and position. Kay provides everything they needed and only chooses the best quality and brands for them. Saffron was studying in one of the prestige Montessori Schools in the City. The extravagant spending of Kay was ire of Tom for he thinks that there are more practical and cheaper brand. Tom is a doting and caring father, however sometime in 2010, he was able to renew his ties his former girlfriend, Kristen Son. They were able to reunite their relationship for they were both employed in the same firm and works in the same shift. In 2012, Kay was able to learn about her husbands relationship with Kristen Son when she answered the phone of Tom. These lead to an argument which made Kay to leave for the United States, demanding a divorce and leaving your granddaughter to Tom Cruz.

The issues that arise from these set of facts are as follows: (a) Can Kay Ty obtain a divorce decree in the United States? (b) Can you be compelled to provide support for Saffron in behalf of Kay? (c) Can you have custody over Saffron? (d) Can the plans of Tom Cruz to file an action for declaration for nullity, annulment or legal separation prosper?

As to these issues, my legal opinions are as follows: (a) Can Kay Ty obtain a divorce decree in the United States? No, the laws that govern in the marriage of Kay Ty and Tom Cruz are the laws of the Philippines, specifically the New Civil Code and the Family Code, there are no provisions allowing absolute divorce between and among Filipino citizens. A divorce decree obtained by a Filipino citizen abroad cannot be recognized in the Philippines.

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The divorce, if obtained in the United States, will be recognized in the Philippines, only if Kay is able to have her American citizenship before obtaining such divorce decree. (b) Can you be compelled to provide support for Saffron in behalf of Kay? As a general rule, No, you cannot be compelled to provide support, Support as defined in Article 194 of the Family Code provides: Support comprises everything indispensable for the sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping with the financial capacity of the family. The last sentence provides that the support should be in proportion with the financial capacity of the family. Kay being a Vice-President for Finance of a bank can provide for the family. As with Tom, being a team leader in a legal transcription firm, he as well provide for the support of Saffron. It is further provided for in Article 199 of the Family Code that: Whenever two or more persons are obliged to give support, the liability shall devolve upon the following persons in the order herein provided: (1)The spouse; (2) The descendants in the nearest degree; (3) The ascendants in the nearest degree; and (4) The brothers and sisters This enumeration by the Family Code provides the hierarchy of persons obliged to give support to a child, before you can be compelled to give support, the spouse and the descendants in the nearest degree first given preference to give support. You cannot be compelled to give support in behalf of Kay Ty for this obligation is personal in nature, it cannot be transferred to another person unless authorized by law. It can only be transferred upon you in cases where the parents are dead, incapacitated or has abandoned their children. Further, if Kay is incapacitated to give support, preference is given to the father, who is capable to give the support to Saffron. Art. 210. Parental authority and responsibility may not be renounced or transferred except in the cases authorized by law. c) Can you have custody over saffron? As a general rule, No, you cannot have custody over Saffron. The instances wherein you can have custody over your grandchild are when 1) Both parents are dead; 2) both parents are incapacitated to have custody 3) both parents abandoned their child; 4) both parents are absentees 5) when legally ordered by court. 1) If either one parent dies, Art. 212. Of the Family Code provides: In case of absence or death of either parent, the parent present shall continue exercising parental authority. xxx xxx xxx

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But in cases where both parents are dead or incapacitated or absent, Art. 214 of the Family code provide that: Art. 214. In case of death, absence or unsuitability of the parents, substitute parental authority shall be exercised by the surviving grandparent. In case several survive, the one designated by the court, taking into account the same consideration mentioned in the preceding article, shall exercise the authority. In the present case, both of the parents are not dead, nor absent, nor declared unsuitable to take care of their children. You cannot therefore have custody over your grandchild. It was further held in the case of LEOUEL SANTOS, SR vs. COURT OF APPEALS, and SPOUSES LEOPOLDO and OFELIA BEDIA G.R. No. 113054 March 16, 1995 that: Private respondents' attachment to the young boy whom they have reared for the past three years is understandable. Still and all, the law considers the natural love of a parent to outweigh that of the grandparents, such that only when the parent present is shown to be unfit or unsuitable may the grandparents exercise substitute parental authority, a fact which has not been proven here. The strong bonds of love and affection possessed by private respondents as grandparents should not be seen as incompatible with petitioner' right to custody over the child as a father. Moreover, who is to say whether the petitioner's financial standing may improve in the future? In the case, the grandparents are awarded with the custody of the child by the trial courts and the Court of Appeals, however it was overturned by the Supreme Court for it was not shown that the father is not incapacitated to take care of the child, and the financial capability of the father is not a ground for him not to have custody over his ward. The custody of the child is now therefore given to the father. d) Can the plans of Tom Cruz to file an action for declaration for nullity, annulment or legal separation prosper? As to the case for declaration of nullity, Tom Cruz action must fail, it is provided for in the Family Code under Articles 35 that: Art. 35. The following marriages shall be void from the beginning: (1) Those contracted by any party below eighteen years of age even with the consent of parents or guardians; (2) Those solemnized by any person not legally authorized to perform marriages unless such marriages were contracted with either or both parties believing in good faith that the solemnizing officer had the legal authority to do so; (3) Those solemnized without license, except those covered the preceding Chapter; (4) Those bigamous or polygamous marriages not failing under Article 41; (5) Those contracted through mistake of one contracting party as to the identity of the other; and (6) Those subsequent marriages that are void under Article 53. Art. 36. A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of

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marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization. (As amended by Executive Order 227) Art. 37. Marriages between the following are incestuous and void from the beginning, whether relationship between the parties be legitimate or illegitimate: (1) Between ascendants and descendants of any degree; and (2) Between brothers and sisters, whether of the full or half blood. (81a) Art. 38. The following marriages shall be void from the beginning for reasons of public policy: (1) Between collateral blood relatives whether legitimate or illegitimate, up to the fourth civil degree; (2) Between step-parents and step-children; (3) Between parents-in-law and children-in-law; (4) Between the adopting parent and the adopted child; (5) Between the surviving spouse of the adopting parent and the adopted child; (6) Between the surviving spouse of the adopted child and the adopter; (7) Between an adopted child and a legitimate child of the adopter; (8) Between adopted children of the same adopter; and (9) Between parties where one, with the intention to marry the other, killed that other person's spouse, or his or her own spouse. Those provided for in these Articles, in which the absence thereof of the essential requisites for a valid marriage, are the exclusive grounds for declaration of nullity of marriage. Until and unless one of these elements is absent, the action must necessarily fail. As to the action planned by Tom Cruz to file an annulment of marriage, it cannot prosper on the reason that, unlike with the grounds of declaration of nullity of marriage, the grounds are also exclusive, as provide in Article 45: Art. 45. A marriage may be annulled for any of the following causes, existing at the time of the marriage: (1) That the party in whose behalf it is sought to have the marriage annulled was eighteen years of age or over but below twenty-one, and the marriage was solemnized without the consent of the parents, guardian or person having substitute parental authority over the party, in that order, unless after attaining the age of twenty-one, such party freely cohabited with the other and both lived together as husband and wife; (2) That either party was of unsound mind, unless such party after coming to reason, freely cohabited with the other as husband and wife; (3) That the consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband and wife; (4) That the consent of either party was obtained by force, intimidation or undue influence, unless the same having disappeared or ceased, such party thereafter freely cohabited with the other as husband and wife; (5) That either party was physically incapable of consummating the marriage with the other, and such incapacity continues and appears to be incurable; or (6) That either party was afflicted with a sexually-transmissible disease found to be serious and appears to be incurable. (85a) Art. 46. Any of the following circumstances shall constitute fraud referred to in Number 3 of the preceding Article:

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(1) Non-disclosure of a previous conviction by final judgment of the other party of a crime involving moral turpitude; (2) Concealment by the wife of the fact that at the time of the marriage, she was pregnant by a man other than her husband; (3) Concealment of sexually transmissible disease, regardless of its nature, existing at the time of the marriage; or (4) Concealment of drug addiction, habitual alcoholism or homosexuality or lesbianism existing at the time of the marriage. No other misrepresentation or deceit as to character, health, rank, fortune or chastity shall constitute such fraud as will give grounds for action for the annulment of marriage

The enumerations provided for in the Family Code are specific and exclusive. The marriage contracted for by Kay Ty and Tom Cruz cannot be subjected to annulment. The case of Legal Separation planned by Tom Cruz is governed by the provision of the Family Code specifically Title II thereof. It states that: Art. 55. A petition for legal separation may be filed on any of the following grounds: (1) Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner; (2) Physical violence or moral pressure to compel the petitioner to change religious or political affiliation; (3) Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the petitioner, to engage in prostitution, or connivance in such corruption or inducement; (4) Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned; (5) Drug addiction or habitual alcoholism of the respondent; (6) Lesbianism or homosexuality of the respondent; (7) Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or abroad; (8) Sexual infidelity or perversion; (9) Attempt by the respondent against the life of the petitioner; or (10) Abandonment of petitioner by respondent without justifiable cause for more than one year. For purposes of this Article, the term "child" shall include a child by nature or by adoption. This article provides the exclusive grounds for legal separation. As to the facts I have gathered from you, none of which can be a ground to be used by Tom Cruz, for the only party who can file an action based on these grounds is the aggrieved spouse. The cause of separation in fact by Kay Ty and Tom Cruz is the infidelity of Tom Cruz, although it is not proven yet that his relationship with Kristen Son is sexual in nature, It cannot be a ground for legal separation, and in that instance it should be Kay Ty who can file the petition. Further, if the ground to be sought for by Tom Cruz is abandonment, he cannot do so for is provided in par.(10) of Art. 55, of the Family Code that: Abandonment of petitioner by respondent without justifiable cause for more than one year. This means that the abandonment must not be justified and that it is for more than five years, and that such abandonment is concluded that both parties have no contact with each other, and that the spouse filing does not know the whereabouts of the other spouse.

NARCIDA LAW OFFICE AND NOTARIAL SERVICES

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This is my legal opinion, it may vary from other counsel however I assure you that my opinion is based on laws and jurisprudence carefully researched and treated by me and my staff. In any other matters relating to this case or any other case, feel free to call and set up a meeting with me so that we can fully discuss the matter. If in the future you would want to file a case or petition before the court of law regarding your case, I am more than willing to provide my services for you. Yours Truly,

Atty. Ruther Marc P. Narcida