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Dissolving some issues in marriage dissolution cases

(Article published in the Apr 8,2003 issue of TODAY, Business Section)  

The 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 first.

But 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. 

The 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.

On 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.

The 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.

That 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.

In 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”.

The 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. 

But 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).

The 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.

The 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 presumptive legitimes.

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.

This 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.”

The March 4 issuances of the Supreme Court on marriage cases cleared the air surrounding those proceedings.  While the Rules cannot avoid the parties suffering the trauma of a broken bond, the parties at the very least will be spared of the unnecessary frustrations and delays that used to haunt previous litigants.