legal Free Legal Advice

[jake_roxas]

may idea ka ba kung magkano ang premium na binabayaran ng firm ninyo at kung kaninong insurance company RE: malpractice insurance ?

 

i dont know the name of the insurance company, but its a US based insurance company. most of our clients are multinational firms since our firm is an affiliate of an international firm. i just remember signing something related to a malpractice suit insurance. i dont have any idea how much premium the firm is paying for each lawyer.

[bonito99]

Why waste money on a bad marriage just to get legal separation? Whole 9 yards.

[jake_roxas]

File a case for annulment instead of legal separation. I will definitely fall under Article 36. I'm pretty sure the practitioners on annulment cases can easily "make out" a case for annulment based on Art. 36 of the Family Code.

 

Just to give us an idea on how Article 36 cases are resolved.

 

GUIDELINES ON DECLARATION OF NULLITY OF MARRIAGE BASED ON ARTICLE 36 OF THE FAMILY CODE (PSYCHOLOGICAL INCAPACITY)

 

(1) The burden of proof to show the nullity of the marriage belongs to the plaintiff. And

doubt should be resolved in favor of the existence and continuation of the marriage and

against its dissolution and nullity. This is rooted in the fact that both our Constitution and

our laws cherish the validity of marriage and unity of the family. Thus, our Constitution

devotes an entire Article on the Family, recognizing it "as the foundation of the nation." It

decrees marriage as legally "inviolable," thereby protecting if from dissolution at the whim

of the parties. Both the family and marriage are to be "protected" by the state.

 

The Family Code echoes this constitutional edict on marriage and the family and

emphasizes their permanence, inviolability and solidarity.

 

(2) The root cause of the psychological incapacity must be (a) medically or clinically

identified, ( alleged in the complaint, © sufficiently proven by experts and (d) clearly

explained in the decision. Article 36 of the Family Code requires that the incapacity must

be psychological - not physical, although its manifestations and/or symptoms mayphysical.

The evidence must convince the court that the parties, or one of them, was mentally or

psychically ill to such an extent that the person could not have known the obligations he

was assuming, or knowing them, could not have given valid assumption thereof. Although

no example of such incapacity need be given here so as not to limit the application of the

provision under the principle of ejusdem generis, nevertheless such root cause must be

identified as a psychological illness and its incapacitating nature fully explained. Expert

evidence may be given by qualified psychiatrists and clinical psychologists.

 

(3) The incapacity must be proven to be existing at "the time of the celebration" of the

marriage. The evidence must show that the illness was existing when the parties

exchanged their "I do's." The manifestation of the illness need not be perceivable at such

time, but the illness itself must have attached at such moment, or prior thereto.

 

(4) Such incapacity must also be shown to be medically or clinically permanent or

incurable.Such incurability may be absolute or even relative only in regard to the other

spouse, not necessarily absolutely against everyone of the same sex. Furthermore, such

incapacity must be relevant to the assumption of marriage obligations, not necessarily to

those not related to marriage, like the exercise of a profession or employment in a job.

Hence, a pediatrician may be effective in diagnosing illnesses of children and prescribing

medicine to ensure them but may not be psychologically capacitated to procreate, bear and

raise his/her own children as an essential obligation of marriage.

 

(5) Such illness must be grave enough to bring about the disability of the party to assume

the essential obligations of marriage. Thus, "mild characteriological peculiarities, mood

changes, occasional emotional outbursts" cannot be accepted as root causes. The illness

must be shown as downright incapacity or inability, not a refusal, neglect or difficulty,

much less ill will. In other words, there is a natal or supervening disabling factor in the

person an, adverse integral element in the personality structure that effectively

incapacitates theperson from really accepting and thereby complying with the obligations

essential to marriage.

 

(6) The essential marital obligations must be those embraced by Articles 68 up to 71 of the

Family Code as regards the husband and wife as well as Articles 220, 221 and 225 of the

same Code in regard to parents and their children. Such non-complied marital obligation(s)

must also be stated in the petition, proven by evidence and included in the text of the

decision.

 

(7) Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic

Church in the Philippines, while not controlling or decisive, should be given great respect

by our courts. It is clear that Article 36 was taken by the Family Code Revision

Committeefrom Canon 1095 of the New Code of Canon Law, which became effective in

1983 and which provides:

 

"The following are incapable of contracting marriage: Those who are unable to assume the

essential obligations of marriage due to causes of psychological nature."

 

Since the purpose of including such provision in our Family Code is to harmonize our civil

laws with the religious faith of our people, it stands to reason that to achieve such

harmonization, great persuasive weight should be given to decisions of such appellate

tribunal. Ideally - subject to our law on evidence - what is decreed as canonically invalid

should also be decreed civilly void.

 

This is one instance where, in view of the evidence source and purpose of the Family

Code provision, contemporaneous religious interpretation is to be given persuasive effect.

Here,the State and the Church - while remaining independent, separate and apart from

eachother - shall walk together in synodal cadence towards the same goal of protecting

and cherishing marriage and the family as the inviolable base of the nation.

 

(8) The trial court must order the prosecuting attorney or fiscal and the Solicitor General

to appear as counsel for the state. No decision shall be handed down unless the Solicitor

General issues a certification, which will be quoted in the decision, briefly stating therein

hisreasons for his agreement or opposition, as the case may be, to the petition. The

SolicitorGeneral, along with the prosecuting attorney, shall submit to the court such

certification within fifteen (15) days from the date the case is deemed submitted for

resolution of thecourt. The Solicitor General shall discharge the equivalent function of the

defensor vinculi contemplated under Canon 1095.

 

And in DAVID B. DEDEL, petitioner, vs. COURT OF APPEALS and SHARON L. CORPUZ-DEDEL a.k.a. JANE IBRAHIM, respondents. REPUBLIC OF THE PHILIPPINES, oppositor-respondent. [G.R. No. 151867. January 29, 2004], the SC ruled:

 

"The main question for resolution is whether or not the totality of the evidence presented is enough to sustain a finding that respondent is psychologically incapacitated. More specifically, does the aberrant sexual behavior of respondent adverted to by petitioner fall within the term “psychological incapacity?”

 

In Santos v. Court of Appeals,[12] it was ruled:

 

x x x “psychological incapacity” should refer to no less than a mental (not physical) incapacity that causes a party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage which, as so expressed in Article 68 of the Family Code, include their mutual obligations to live together, observe love, respect and fidelity and render help and support. There is hardly any doubt that the intendment of the law has been to confine the meaning of “psychological incapacity” to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity of inability to give meaning and significance to the marriage. This psychological condition must exist at the time the marriage is celebrated. The law does not evidently envision, upon the other hand, an inability of the spouse to have sexual relations with the other. This conclusion is implicit under Article 54 of the Family Code which considers children conceived prior to the judicial declaration of nullity of the void marriage to be “legitimate.”

 

The other forms of psychoses, if existing at the inception of marriage, like the state of a party being of unsound mind or concealment of drug addiction, habitual alcoholism, homosexuality or lesbianism, merely renders the marriage contract voidable pursuant to Article 46, Family Code. If drug addiction, habitual alcoholism, lesbianism or homosexuality should occur only during the marriage, they become mere grounds for legal separation under Article 55 of the Family Code. These provisions, however, do not necessarily preclude the possibility of these various circumstances being themselves, depending on the degree and severity of the disorder, indicia of psychological incapacity.

 

Until further statutory and jurisprudential parameters are established, every circumstance that may have some bearing on the degree, extent and other conditions of that incapacity must, in every case, be carefully examined and evaluated so that no precipitate and indiscriminate nullity is peremptorily decreed. The well-considered opinion of psychiatrists, psychologists and persons with expertise in psychological disciplines might be helpful or even desirable.[13]

 

The difficulty in resolving the problem lies in the fact that a personality disorder is a very complex and elusive phenomenon which defies easy analysis and definition. In this case, respondent’s sexual infidelity can hardly qualify as being mentally or psychically ill to such an extent that she could not have known the obligations she was assuming, or knowing them, could not have given a valid assumption thereof.[14] It appears that respondent’s promiscuity did not exist prior to or at the inception of the marriage. What is, in fact, disclosed by the records is a blissful marital union at its celebration, later affirmed in church rites, and which produced four children.

 

Respondent’s sexual infidelity or perversion and abandonment do not by themselves constitute psychological incapacity within the contemplation of the Family Code. Neither could her emotional immaturity and irresponsibility be equated with psychological incapacity.[15] It must be shown that these acts are manifestations of a disordered personality which make respondent completely unable to discharge the essential obligations of the marital state, not merely due to her youth, immaturity[16] or sexual promiscuity.

 

At best, the circumstances relied upon by petitioner are grounds for legal separation under Article 55[17] of the Family Code. However, we pointed out in Marcos v. Marcos[18] that Article 36 is not to be equated with legal separation in which the grounds need not be rooted in psychological incapacity but on physical violence, moral pressure, civil interdiction, drug addiction, habitual alcoholism, sexual infidelity, abandonment and the like. In short, the evidence presented by petitioner refers only to grounds for legal separation, not for declaring a marriage void.

 

We likewise agree with the Court of Appeals that the trial court has no jurisdiction to dissolve the church marriage of petitioner and respondent. The authority to do so is exclusively lodged with the Ecclesiastical Court of the Roman Catholic Church.

 

All told, we find no cogent reason to disturb the ruling of the appellate court. We cannot deny the grief, frustration and even desperation of petitioner in his present situation. Regrettably, there are circumstances, like in this case, where neither law nor society can provide the specific answers to every individual problem.[19] While we sympathize with petitioner’s marital predicament, our first and foremost duty is to apply the law no matter how harsh it may be.[20]"

[jake_roxas]

Why waste money on a bad marriage just to get legal separation? Whole 9 yards.

 

because the petitioner, like in the Dedel case, might be spending an even awful lot of money and resources and ending up with a dismissal of an Article 36 petition. perhaps, the safest route is to allege alternative causes of action.

Edited August 28, 2006 by jake_roxas

[bonito99]

That's up to the lawyer. Not the client.

 

The best result may not be the safest.

[jake_roxas]

what's wrong with alleging alternative causes of action?

 

what do you mean it is up to the lawyer not the client?

Edited August 28, 2006 by jake_roxas

[dictum]

what's wrong with alleging alternative causes of action?

 

what do you mean it is up to the lawyer not the client?

 

 

Thank you, sir Jake Roxas for a very lengthy lecture on "psychological incapacity". I'm pretty sure all of us were "enlightened" by your brilliance.

 

Just the same, I still maintain that it would be very easy for annulment practitioners to "make out" a case for annulment based on psychological incapacity given the spouse's sexual infidelity. And if he were my client, I would advise him to file for annulment and not merely legal separation taking into consideration that had it happened to me, I would want to remove her both physically and legally from my life.

 

Based on the case which you quoted herein-above, the Supreme Court ruled and I quote for immediate reference:

 

"Respondent’s sexual infidelity or perversion and abandonment do not by themselves constitute psychological incapacity within the contemplation of the Family Code. Neither could her emotional immaturity and irresponsibility be equated with psychological incapacity.[15] It must be shown that these acts are manifestations of a disordered personality which make respondent completely unable to discharge the essential obligations of the marital state, not merely due to her youth, immaturity[16] or sexual promiscuity."

 

Thus, as ruled by the Supreme Court "it must be shown that these acts are manifestations of a disordered personality to be equated with respondent completely unable to discharge the essential obligations of the marital state". As such, it is a matter of satisfying the legal and evidentiary requirements of the law. I'm pretty sure that any annulment lawyer worth his salt would be adept at fulfilling the rudimentary requirements of the law.

 

Hence, if it is a question of the best case to file, annulment should be preferred. Of course, it goes without saying that the evidentiary requirements should be met.

 

This being a "free legal advice forum", the client should be given the best options together with the possible risks and limitations and at the end of the day, he is free to choose which option would be viable and applicable to his situation.

 

Peace.

[wjc-934]

mga pre, napakalaki ng maitutulong nyo sakin pag alam nyo ang solusyon sa problema kong ito. nag attached ako ng pics na lagi lumalabas sa screen bago mag restart PC ko. thanks in advance...

[Waterbearer]

This being a "free legal advice forum", the client should be given the best options together with the possible risks and limitations and at the end of the day, he is free to choose which option would be viable and applicable to his situation.

 

Peace.

Feeling ko parang naglalaro tayo ng Deal or No Deal

 

Anyways......every option has pros and cons.....e mukhang pera ako kaya, annul talaga ang iaadvice ko bwahahahaha joke* joke* joke* I think this will depend on how confident the lawyer is of his/her ability to win the case. If his/her professional judgement tells him/her that the totality of the evidence presented does not fall short of proving psychological incapacity, then it's a go.....if it's not sufficient, the lawyer will go for other remedies.....which makes Legal separation a safe bet.....but if the personality of the lawyer is more of a risk-taker.......The alternative does not become an option.

Edited August 29, 2006 by Waterbearer

[quicksilver06]

Guys can you help me?

 

I lost my files, dont know what happened..pag open ko ng laptop ko, bumalik sa default settings ng windows..Concern ko lang kasi all my files are in my docs folder.Pero I noticed na andito pa rin yung mga programs ko..My docs files ko lang talaga nawala. I already perform system restore, but unfortunately di sya nag work.. Ano kaya cause? Im using WinXP Home edition.Pls. help me.

[jake_roxas]

Hence, if it is a question of the best case to file, annulment should be preferred. Of course, it goes without saying that the evidentiary requirements should be met.

 

This being a "free legal advice forum", the client should be given the best options together with the possible risks and limitations and at the end of the day, he is free to choose which option would be viable and applicable to his situation.

 

Peace.

 

and i would advise my client to file NOT JUST an Article 36 petition, i would rather allege alternative causes of action for annulment and legal separation.

 

but if the evidentiary requirements are met, then there would be no need for this discussion ait? because i for one would opt for article 36. but if it is just based on adulterous acts, i will stick to my alternative causes of action option.

[badblizzard]

Guys can you help me?

 

I lost my files, dont know what happened..pag open ko ng laptop ko, bumalik sa default settings ng windows..Concern ko lang kasi all my files are in my docs folder.Pero I noticed na andito pa rin yung mga programs ko..My docs files ko lang talaga nawala. I already perform system restore, but unfortunately di sya nag work.. Ano kaya cause? Im using WinXP Home edition.Pls. help me.

 

Are you logging in using the same user?

 

Tried booting up using safe mode? then access mo yung My docs ng different users mo. Should be under C:\Documents and Settings.

 

Let me know if you need more help.

[jake_roxas]

How do you plead an alternative cause of action?

 

"RULE 8

Manner of Making Allegations in Pleadings

 

xxx

 

Section 2. Alternative causes of action or defenses. — A party may set forth two or more statements of a claim or defense alternatively or hypothetically, either in one cause of action or defense or in separate causes of action or defenses. When two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. (2)"

[Silent Partner]

To All our Lawyers

 

TANONG lang po !!

 

3 po kaming magkakaibigan, and we decided that each one invest 200T

to buy a piece of LAND,

 

Puede po bang ilagay sa name naming 3 iyung TITLE nito kung hindi po puede , what other LEGAL ways we CAN do para naman lahat kami ay magkaroon ng right doon sa LUPANG bibilhin namin.

 

Appreciate your replies

 

thanks

S.P.

[paupawie]

tao po! i have a question - yung isa kong pc, upon start-up, hard disk fail....nilipat ko sa isa kong pc, as a slave....nadetect naman..pero hindi tugma yung information sa computer management (yung sa control panel > administrative tools > disk management)....

 

...sira na kaya yung hard disk? at pwede pa kaya ma-retrieve yung data dun?