(Article published in the Apr 8,2003 issue of TODAY, Business Section)
mine-strewn field of legal practice known elsewhere as “divorce law”
has, until recently, been a no-fly zone for estate planning practitioners.
Not that there is no similarity between dying and getting married. I
remember my Civil Law Reviewer, Justice Eddie Caguioa told us, seniors at
the Ateneo Law School that we would be excused from his classes only if we
died or if we got married. The reason being that the second is like the
the real reason why estate planning practitioners, particularly those who
learned their law when persons and family relations were governed by the
Civil Code of 1950, do not concern themselves with the dissolution of the
marriage bond is because it had for a long time minimal impact on how the
property of the separating spouses were to be distributed.
promulgation of Executive Order 209, popularly known as The Family Code of
the Philippines, by President Corazon Aquino, however, made it necessary for
us to make occasional forays into that heretofore restricted territory.
The Family Code requires, as a general rule, separating couples to
deliver to their common children the latter’s “presumptive legitimes”,
unless they have by mutual agreement judicially approved already provided
for such matters. This makes it
imperative for the parties to face squarely the question of how a major
portion of their assets are to be distributed among their children.
March 4, the Supreme Court approved three resolutions relating to
dissolution of the marriage bond. The
first was the Rule on Declaration of Absolute Nullity, of Void Marriages
and Annulment of Voidable Marriages (A.M. 02-11-10-SC); the second, the
Rule of Legal Separation (A.M. 02-11-11-SC); and the third, Rule on
Provisional Orders (A.M. 02-11-12). I
leave to experts, -- like my partner, Atty. Jose Gabriel “Joey”
Benedicto; host of the TV program “By Demand”, Atty. Katrina Legarda,
and Atty. Lorna Kapunan, with whom I had the opportunity of attending to
the needs of one of the most intellectually challenging clients I have met
in my many years of legal practice,-- to fully explain their import.
For the moment, I limit myself to two observations.
first relates to the delineation of the roles of the Office of the
Solicitor General and the pubic prosecutor while the case is pending in
the lower court; the second, the insistence on the need for a property
settlement between the parties as a necessary incident to the proceedings.
marriage is more than a mere contract has been recognized by law as early
as in the 1950 Civil Code (Article 52).
That, as an inviolable social institution and foundation of the
family, it is to be protected by the Sate is a constitutional mandate
(Sec. 2, Article XV, Constitution). That
the fiscal is required to see to it that the parties do not collude to
secure a separation has been standard procedure. But that the Solicitor
General should involve himself deeply in cases affecting the marriage
bond, with the zeal of Joan of Arc, is primarily the fruit of Republic v.
Molina, G.R. 108763, promulgated February 13, 1997.
Molina, the Supreme Court,
seemingly alarmed at how the ground of psychological incapacity to comply
with the essential marital obligations of marriage could in effect turn
Article 36 of the Family Code as “divorce-Philippine style”, laid out
stringent guidelines, for the guidance of bench and bar, on how to try
cases seeking marriages to be declared nullities. Among
those requirements is the need for the trial court “to order the
prosecuting attorney or fiscal [as had always been the case] AND the
Solicitor General to appear as counsel for the state”.
solicitor general is required to issue a certification within 15 days from
the date the case is submitted for resolution by the court declaring
whether or not he agrees or opposes the petition, and stating his reasons
therefor. That certification
is to be quoted in the decision of the court; hence, decisions cannot be
handed down unless the Solicitor General makes his certification.
Since asking for extensions of period within which to file things
in court is a common lawyerly fault, whether solicitor general or not,
this requirement had contributed in no small measure to the congestion in
the marriage cases pipeline.
over and above that requirement of a certification of agreement or
opposition, Molina gave the
Solicitor General a fervent mission: he is to “discharge the equivalent
function of the defensor vinculi
contemplated in Canon 1095”. Canon
1095 was from the Catholic Church’s New Code of Canon Law which took
effect on November 27, 1983 and is admittedly the inspiration of the Civil
Code revision committee that drafted the Family Code (Sempio-Diy, Handbook
on the Family Code of the Philippines, 1999).
Supreme Court has rethought its position since Molina and has decided that the Solicitor General had more important
things to do than keeping people married. In cases of declaration of absolute nullity and of void
marriages and annulment of voidable marriages, the Solicitor General is
limited to receiving one of the six copies of the petition, upon its
filing, to being consulted in the preparation by the public prosecutor of
his memorandum, and to receiving a copy of the decision of the court and
filing an appeal, if warranted. The
crucial tasks of appearing at the pre-trial, determining whether the
parties are in collusion should the respondent not appear at the
pre-trial, and intervening for the State during the trial on the merits to
prevent suppression or fabrication of evidence, are left to the public
prosecutor. These reforms, no
doubt, will speed up the resolution of marriage dissolution cases.
other feature of the recent Supreme Court issuances, of great relevance to
estate planning, is Court’s insistence that the parties address the
question of the distribution of the presumptive legitimes of their common
children. It is bad enough
that the children emotionally and psychologically suffer in the
cross-fire. It would be very
bad if they are left out in the cold.
Thus, the Family Code requires a distribution to them of their
In one of the early cases on the Family Code, Valdes v. RTC Br. 102, Q.C., 260 SCRA 221, the parties to a declaration of absolute nullity case failed to come to an agreement, prior to the time the case was heard, on the division of their common property. The court therefore ordered them, in the judgment declaring their marriage null and void, to start proceedings on the liquidation of their common properties and to comply with the provisions, distribution articles of the Family Code, i.e. Arts. 50, 51, and 52. The petitioner asked for clarification of that portion of the judgment and, in response, the court maintained that property regime between the parties was that of co-ownership. In effect, the marriage tie between the parties was declared inexistent; but they remained connected as co-owners over their properties. The Supreme Court upheld the lower court and held that “a court which had jurisdiction to declare the marriage a nullity must be deemed likewise clothed with authority to resolve incidental and consequential matters” such as on the co-ownership of the parties over their properties.
ruling found its way in A.M. 02-11-10-SC and A.M. 02-11-11-SC.
These rules require the decision, if it grants the petition, to
order parties who have properties to “proceed with the liquidation,
partition and distribution of the properties of the spouses, including
custody, support of common children and delivery of their presumptive
legitimes pursuant to Articles 50 and 51 of the Family Code unless such
matters had been adjudicated in previous judicial proceedings.”