5 CACHO, JULIAN PAUL S.

1Q TRIAL MEMORANDUM FOR THE PLAINTIFF

LEGAL RESEARCH

PETITIONER, by undersigned counsel, unto this Honorable Court most respectfully files its Memorandum in support for their petition.

FACTS

1. Petitioner Karenina B. Lago (Karenina) is 38 years old, an accountant and is residing at 1234 Mapayapa Street, Sampaloc Manila.

2. In December 2000, Karenina separated from Joshua T. Dy whom she was married with for three years and had a daughter with, Karyn. In October 2011, a petition for annulment was filed by her ex-husband in the Regional Trial Court of Makati City and is still pending.

3. After separation, Karenina met Darius J. Santos (Darius), a doctor in one of the hospitals of their auditing firm services and begun dating.

4. In 1988, Darius was married to Carol Esconde (Carol) and they had three kids. They separated in 1992. Karenina and Carol became close friends and she also grew close with Carols sons. Carol mentioned to her that Darius left them for another woman, which caused their separation. 5. Carol filed an annulment case, which was dismissed due to disintererst. In 2004 or 2005, Carol went to the US, eventually filed for divorce and got married to an American.

6. In 1998 to 2002, Darius was living together with Milette Torres (Millete), the second wife. Milette also annulled her first marriage from which she had two kids. Darius stayed at Milettes place in Quezon City. Darius got Milette pregnant and was allegedly forced to marry her. In January 5, 2001, they got married at the Health Center in QC hall, officiated by a pastor. Milette had spontaneous abortion afterwards.

7. Karenina and Darius were already having an affair while Darius and Millete were still together and even after the latters marriage. In 2002, Darius claimed he already left Millete for Karenina but he was still seeing Millete. Karenina decided to end their relationship but Darius begged her not to and promised to leave Millette for good.

8. While Karenina and Darius are together, they did not live in one house. Darius was living in a condominium in Quezon City while Karenina was in her mothers house in Sampaloc. Both later on lived together in Quezon City during which Karenina was establishing her practice.

9. Darius and Karenina have three kids who are Coleen in 2003, Cora in 2004 and Carlo in 2009.

10. Karenina mentioned that Darius was very controlling, dominant verbally abusive and has a temper problem. According to her, she was physically assaulted thrice and sustained wounds and bruises, and this physical abuses was witnessed by her children. Karenina also claimed that Carol, Darius ex-wife, told her that she was physically abused many times by him as well.

11. In 2003, Darius acquired a lot in Alabang and claimed Karenina as a co-owner but she did not signed anything. He also bought a second-hand BMW but later on sold it to buy a Toyota Innova. In 2006, Darius bought a motorcycle. During their relationship, they were able to buy many appliances for their home which they

paid in cash and all papers would be in Darius name. For the large purchases, Darius used his credit cards and he has all proofs of payment.

12. In the previous year, they bought a Ford Escape for a down payment of P120,000. Half of the down payment was taken from their pooled funds and the other half was from Darius old Lancer that they sold. The car loan was from BPI and the car was placed in Kareninas name.

13. Karenina owns 100 shares of stock in San Miguel Corporation but Darius took her important documents. She did the accounting and paid all their bills.

14. In 2006, Karenina started her accounting firm. She was making more money but gave it all to her pooled funds with Darius and she wasnt able to save for herself.

15. Karenina and Darius got into a fight. He mentioned he was leaving and also said hurtful remarks to Karenina but he stayed in their house until the end of June because he has no money to pay for down payments/rental deposit. During such week he bought an armalite and would frighten Karenina with it.

16. Before Darius left in August, they had more fights concerning bills and his time with their children. He threatened her that hell leave them for good, find other women to have affairs with, verbally abused her and hit her twice. Afterwards, Darius openly tells people he is single and available and refuses to give anything for his children with Karenina. He took Kareninas laptop, their 32-inch Bravia flat screen television, and her Canon EOS camera and also threatened to get the new car.

ISSUES

The issues to be resolved in this case are as follows:

1. Whether plain cohabitation of Petitioner and defendant is equivalent to coownership and a presumption of equal shares of their properties; 2. Whether Defendant has the right to take properties purchased in his relationship with Petitioner; and 3. Whether or not the separate property of the Defendant shall be answerable for the support of the Petitioners children.

ARGUMENTS The Petitioner and Defendants plain cohabitation without any proof of contribution or participation to the payments done in the period of their cohabitation does not result in a co-ownership. The case for annulment filed by Kareninas husband, Joshua T. Dy, is still pending in the Regional Trial Court of Makati while she is in a relationship and cohabitating with the Defendant. This indicates that both parties, the Petitioner and the Defendant, do not have any capacity engage in a subsequent marriage while they were cohabitating. Thus, the pertinent property regime in their case is provided for in Art. 148 of the Family Code that regards to other cases of cohabitation, only the properties acquired by both of the parties through their actual joint contribution of money, property, or industry shall be owned by them in common in proportion to their respective contributions. Moreover, the lack or the absence of proof to the contrary that must be provided by the parties makes their contributions and shares equal, and this includes joint deposits and evidences of credit.

The aforementioned facts clearly suggests that the Petitioner does not have a proof of participation in any of the payments which includes a lot situatued in Alabang Hills, the second-hand BMW that the Defendant later sold to purchase a Toyota Innova, the motorcycle, and the home appliances. According to Art. 148 of the Family Code, coownership and presumption of equal shares do not exist when actual contribution of

property were unproven.1 Thus, the presumption that there are equal shares and coownership exists is terminated upon the failure of the Petitioner to present proof of involvement in the payments. If the defendant can show proofs of his contributions in the payments he may be considered the exclusive owner of the said properties. Furthermore, cohabitation that does not present any proof of participation does not cause coownership.2

The Defendant does not have the right to take all the properties which is purchased and acquired in the period of his cohabitation with the Petitioner, unless proofs of participation in any payments is presented.

Art. 147 of the Family code provides that, when a man and a woman who are capacitated to marry each other, live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, their wages and salaries shall be owned by them in equal shares and the property acquired by both of them through their work or industry shall be governed by the rules on coownership.

Hence, in accordance to the aforementioned provision of the Family Code and has been previously discussed in the preceding issue, mere cohabitation or a common-law marriage does not result co-ownership. The absence of proofs of contributions to the acquired properties destroys the presumption of equal shares. However, it is already clear that in abovementioned provision that cohabitation tantamount to equal shares and their properties acquired through their work shall be governed by the rules of co-ownership provided it is not only a mere cohabitation and proofs of participation in any of the payments is present.

1 2

Agapay v. Palang, G.R. No. 116668, July 28, 1997. Tumulos v. Fernandez, G.R. No. 137650, April 12, 2000.

The property separately acquired by the Defendant shall be obligated to be used by the him to support his illegitimate children with the Petitioner.

Article 195, Sec. 4 of the Family Code expresses that support between the Parents and their illegitimate child is obligatory. Consequently, the Defendant must provide for the sustenance, dwelling, clothing, medical attendance, education and transportation of his children. It is an obligation and requirement that he provides for them although they illegitimate. In accordance with Article 197 of the Family code, the support of descendants whether legitimate or illegitimate, is answerable to the separate property of the person obliged to give support. However, this must be provided that in case the obligor has no separate property, the absolute community or the conjugal partnership, if financially capable, shall advance the support, which shall be deducted from the share of the spouse obliged upon the liquidation of the absolute community or of the conjugal partnership. Also in accordance with the decision the Supreme Court, it is a ground for the requiring of the father to give support to the child, his recognition of the illegitimacy of the child.3 Therefore, conforming to the abovementioned provision, the separate property of the defendant which he acquired by his own funds, through his work or industry and properties acquired shall be held answerable for the support of the Petitioners children in accordance with the abovementioned provision and if he willing recognize the illegitimacy of the children.

that all properties which both of them acquired during their live-in relationship be divided equally to both as co-owners with the consideration of their children; and that the defendant be compelled to support his children with the plaintiff in accordance with the law for their rights and protection.

David v. Court of Appeals, 250 SCRA 82, 86, November 16, 1995.

PRAYER WHEREFORE, in regard to aforementioned facts and arguments, it is respectfully prayed that further proceedings on the protection of the rights of the Petitioner to the equal partition of all the properties that both the Petitioner and Defendant acquired in the period of their cohabitation. It may be equally divided in consideration of their children. It is further prayed that the Defendant be required to be answerable to the support of the children using his separately acquired properties as obligated by the law. This is in accordance with the law for the rights and protection of the children. Finally, other reliefs that are just and equitable under the present circumstances are likewise prayed for. Respectfully submitted. Quezon City, Metro Manila, 24 October 2011.

JULIAN Counsel 23/F 6767 Ayala 1227 for

PAUL the

S. Private One, Ayala Paseo City, de Roxas Metro

CACHO Complainant Triangle Avenue Manila

Tower Avenue corner Makati

By: ATTY. MAYSIE LECCIONES IBP Lifetime No. 67891; 5/10/2005 PTR No. 44568; 1/10/201 Roll of Attorney No. 2005-001023

Copy HON. RESTITUTO Trial Hall of Justice, Quezon City

furnished: GERONIMO Prosecutor Hall

Quezon City, Metro Manila

BIBLIOGRAPHY

The Family Code of the Philippines

Cases/Jurisprudence

Agapay v. Palang, G.R. No. 116668, July 28, 1997. Tumulos v. Fernandez, G.R. No. 137650, April 12, 2000. David v. Court of Appeals, 250 SCRA 82, 86, November 16, 1995.