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COMMON-LAW MARRIAGE (LIVE- common nowadays — the “live-in” the other, until after the termination of

IN RELATIONSHIPS) IN THE relationship, also called “common-law their cohabitation.


PHILIPPINES marriage“. This is governed by Article 147
of the Family Code, which reads: When only one of the parties to a void
Money is [one of] the root[s] of all kinds of marriage is in good faith, the share of the
relationship problems, says an article at Art. 147. When a man and a woman who party in bad faith in the co-ownership
the Family Relationships site. In my are capacitated to marry each other, live shall be forfeited in favor of their common
modest years of law practice, I can say exclusively with each other as husband children. In case of default of or waiver by
that among the most bitter confrontations and wife without the benefit of marriage any or all of the common children or their
(in and out of court) relate to or under a void marriage, their wages and descendants, each vacant share shall
property/money/inheritance issues salaries shall be owned by them in equal belong to the respective surviving
between members of the family. shares and the property acquired by both descendants. In the absence of
of them through their work or industry descendants, such share shall belong to
Under the Family Code of the Philippines, shall be governed by the rules on co- the innocent party. In all cases, the
property matters between the husband ownership. forfeiture shall take place upon
and wife are set forth in relative detail, termination of the cohabitation.
e.g., the forms and requisites of a In the absence of proof to the contrary,
marriage settlement or ante-nuptial properties acquired while they lived The Family Code (Art. 147) recognizes,
agreement, donations by reason of together shall be presumed to have been and expressly governs the property
marriage, the “default” property regime of obtained by their joint efforts, work or relations in, the relationship where a man
absolute community of property (vis-a-vis industry, and shall be owned by them in and a woman live exclusively with each
separation of property, and conjugal equal shares. For purposes of this Article, other just like a husband and wife, but
partnership of gains), support for the a party who did not participate in the without the benefit of marriage (or when
spouse and the children, and the effects acquisition by the other party of any the marriage is void). It is required,
of legal separation and annulment of property shall be deemed to have however, that both must be capacitated,
marriage on the spouses’ properties. I’m contributed jointly in the acquisition or has no legal impediment, to marry
still trying to decide if I should further thereof if the former’s efforts consisted in each other (for instance, couples under a
discuss any of these topics (also, the the care and maintenance of the family “live-in” relationship will not be covered
rules on succession/inheritance are and of the household. under this provision if one or both has a
treated in other laws/issuances, and may prior existing marriage). In this situation,
be discussed separately in other entries). Neither party can encumber or dispose by property acquired by both spouses
acts inter vivos of his or her share in the through their work and industry shall be
For this entry, allow me to focus on property acquired during cohabitation and governed by the rules on equal co-
something that appears to be increasingly owned in common, without the consent of ownership. Any property acquired during
the union is presumed to have been existing in such valid marriage. If the REGULATIONS OF REPUBLIC ACT
obtained through their joint efforts. As to party who acted in bad faith is not validly NO. 9255)
the homemaker, or the one who cared for married to another, his or her shall be [Prior to the enactment of Republic Act
and maintained the family household, forfeited in the manner provided in the No. 9255, an illegitimate child, or a child
he/she is still considered to have jointly last paragraph of the preceding Article. born outside of a valid wedlock, may
contributed to the acquisition of a ONLY use the surname of the mother
property, even if he/she did not directly The foregoing rules on forfeiture shall and, regardless of any circumstances, is
participate in the property’s acquisition. likewise apply even if both parties are in prohibited from using the father’s
bad faith. surname. Before the amendment, Article
How about if one or both partners are not 176 of the Family Code provides that:
capacitated to marry, as when one (or In other words, under Art. 148, only the “Illegitimate children shall use the
both) has an existing or prior marriage properties acquired through their surname and shall be under the parental
which has not been annulled/declared ACTUAL JOINT contribution of money, authority of their mother, and shall be
void? This is covered under Art. 148 of property or industry shall be owned by entitled to support in conformity with this
the Family Code, which reads: them in common (in proportion to their Code.” As the law now stands, there is an
actual contributions). There is no OPTION to use the surname of the
Art. 148. In cases of cohabitation not presumption that properties were mother or, if the required documents are
falling under the preceding Article, only acquired through the partners’ joint effort. submitted, the surname of the father.
the properties acquired by both of the Please also note that if one has a prior
parties through their actual joint marriage, his/her share shall be forfeited JUDICIAL RECOGNITION OF A
contribution of money, property, or in favor of that previous marriage (as an FOREIGN DIVORCE DECREE
industry shall be owned by them in aside, the children under the second
common in proportion to their respective relationship shall be considered as Divorce is not allowed in the Philippines
contributions. In the absence of proof to illegitimate). and divorce secured anywhere by a
the contrary, their contributions and Filipino is not recognized in this
corresponding shares are presumed to be So, as previously stated in this Forum, jurisdiction.We already have a number of
equal. The same rule and presumption put your (first) house in order first. No discussions on this (read more here and
shall apply to joint deposits of money and need to rush; love is patient. It can wait. here). In certain instances, however, a
evidences of credit. divorce validly secured abroad by a non-
ALLOWING ILLEGITIMATE CHILDREN Filipino may be recognized here in the
If one of the parties is validly married to TO USE THE SURNAME OF FATHER Philippines.
another, his or her share in the co- (ADMINISTRATIVE ORDER NO. 1,
ownership shall accrue to the absolute REVISED IMPLEMENTING RULES AND What are circumstances that would make
community or conjugal partnership Article (Family Code) applicable?
marriage could still be annulled or Why should we waste money in filing a
We have a basic discussion on Article 26 declared null and void from the beginning. petition in court for the recognition of the
of the Family Code (click here: Divorce divorce decree?
and Annulment in the Philippines). If there’s already a divorce validly
Included in that discussion are the two secured abroad (by the foreigner-spouse This is the requirement of law,
elements that must be shown before the or the Filipino spouse who became a unfortunately. The divorce decree must
second paragraph of Article 26 is applied: foreign citizen, losing his/her Filipino be proven, just like any fact, in court. The
citizenship in the process), can the presentation of the divorce decree is
There is a valid marriage that has been Filipino spouse immediately remarry? insufficient. Proof of its authenticity and
celebrated between a Filipino citizen and due execution must be presented. This
a foreigner; and No. The existence of a valid divorce necessarily entails proving the applicable
A valid divorce is obtained abroad by the decree, however, does not automatically laws of the jurisdiction where the
alien spouse capacitating him or her to entitle the Filipino to remarry in the foreigner-spouse (who could be a former
remarry. Philippines. The foreign divorce decree Filipino) is a national. One of the
Is this provision applicable to former must be judicially recognized in the requirements under Article 26 is that the
Filipinos? Philippines. This means that the proper decree of divorce must be valid according
action or petition must be filed in a to the national law of the foreigner.
Yes. See the discussion here. Philippine court. For purposes of re-
marriage, the divorce validly secured For instance, we have discussed
This law provides that the divorce must abroad is not automatically recognized (“Divorce and Annulment in the
be secured by the foreigner-spouse. here in the Philippines. Philippines“) that a Filipino – wherever
What if the foreigner-spouse continually he/she may be located in the world – is
maltreats the Filipino/Filipina spouse, isn’t Isn’t it enough that I already forwarded governed by Philippine laws on marriage.
it unfair that the Filipino/Filipina can’t the divorce decree to the Philippine This means that while he/she can secure
initiate divorce? Embassy (or the Department of Foreign a divorce outside the Philippines, such
Affairs) and the National Statistics Office divorce is NOT recognized in the
It may be unfair, but that’s the law, (NSO)? Philippines. The same article also
consistent with the State’s policy of not contains a discussion on the effect of
allowing divorce for Filipinos. This doesn’t No. The foreign divorce decree must be losing Filipino citizenship vis-a-vis
mean, however, that the Filipino/Filipina recognized here in the Philippines; a divorce. If a Filipino is naturalized as a
has no other recourse. If the process which may only be done through foreign citizen and, in the process, loses
circumstances fall under the grounds for the courts. his/her Filipino citizenship, such former
annulment/declaration of nullity, then the Filipino can validly seek a divorce abroad
and the divorce is recognized in the
Philippines. In other words, after considered as a defiance of (Concerned Employee vs. Glenda
complying with the procedure in having contemporary social mores.” (Chua-Qua Espiritu Mayor, AM No. P-02-1564, 23
the foreign decree of divorce judicially vs. Clave, G.R. No. L-49549, 30 August November 2004)
recognized (through a court action) here 1990)
in the Philippines, the Filipino spouse “Marital union is a two-way process. An
may validly remarry. “We cannot castigate a man for seeking expressive interest in each other’s
out the partner of his dreams, for feelings at a time it is needed by the other
LOVE AND LAW marriage is a sacred and perpetual bond can go a long way in deepening the
which should be entered into because of marital relationship. Marriage is definitely
It may seem improper to talk about love in love, not for any other reason.” (Patricia not for children but for two consenting
a legal forum, particularly considering that Figueroa vs. Simeon Barranco, Jr., GR adults who view the relationship with love
among the most popular articles relate to No. 97369, 31 July 1997) amor gignit amorem, respect, sacrifice
annulment, legal separation and divorce. and a continuing commitment to
Still, Valentines, February 14, is just “The nuptial vows which solemnly intone compromise, conscious of its value as a
around the corner and there could be no the matrimonial promise of love ‘(f)or sublime social institution.” (Chi Ming Tsoi
serious objections why we could not talk better or for worse, for richer or for vs. Court of Appeals and Gina Lao- Tsoi,
about this “gentle and universal emotion.” poorer, in sickness and in health, till GR No. 119190, 16 January 1997)
Besides, even the Supreme Court had death do us part,’ are sometimes easier
occasions to talk about love — said than done, for many a marital union
figuratively ends on the reefs of
“Private respondent [the school] utterly matrimonial shoals. In the case now
failed to show that petitioner [30-year old before us for appellate review, the
lady teacher] took advantage of her marriage literally ended under
position to court her student [16-year old]. circumstances which the criminal law,
If the two eventually fell in love, despite disdainful of romanticism, bluntly calls the
the disparity in their ages and academic felony of parricide.” (People of the
levels, this only lends substance to the Philippines vs. Ruben Takbobo, GR No.
truism that the heart has reasons of its 102984, 30 June 1993)
own which reason does not know. But,
definitely, yielding to this gentle and “The Court, like all well-meaning persons,
universal emotion is not to be so casually has no desire to dash romantic fancies,
equated with immorality. The deviation of yet in the exercise of its duty, is all too
the circumstances of their marriage from willing when necessary to raise the wall
the usual societal pattern cannot be that tears Pyramus and Thisbe asunder.”

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