Jester Kutch A.

Olayta Section 1-A Legal Research

October 20, 2011
Johnny V. Matulis

RE: Legal Opinion with respect to the intention of the client of marrying his girlfriend.

Dear Mr. Matulis:

In response to your request, I have analyzed whether you can marry your girlfriend Tatiana and
annul your marriage with Marsha Matulis.

My opinion is based on the following facts: The client, Mr. Johnny Matulis has been married to
Marsha for 20 years. He left his wife and did not visit nor communicated with his spouse for ten
months. He now wants to marry his girlfriend, Tatiana, who is also two months pregnant and
move on with his life. He now seeks advice on the following issues:

a) What is the legal recourse to enable him to marry his girlfriend
b) Is he obliged to support his former spouse
c) How can the conjugal properties be divided so that he can obtain the maximum
benefit
d) Can he obtain the custody of their eight son Matthew.

As regards to the first issue, You can file an annulment on psychological incapacity on your part
for not being able to perform your marital duties. Article 36 provides that:

Art. 36. A marriage contracted by any party who, at the time of the celebration, was
psychologically incapacitated to comply with the essential marital obligations of
marriage, shall likewise be void even if such incapacity becomes manifest only after
its solemnization
1
.

However, you must show that a medical proof that would qualify you as being psychologically
incapacitated to perform the marital duties. As held in the case of Republic vs. Quintero-
Hamano
2
, it is not enough that the spouse failed to meet his responsibility and duty as a married
person, it is also essential that he must have shown that it was caused by a psychological
incapacity or ailment. Therefore, you must be able to prove that you are psychologically
incapacitated by submitting a medical certificate that states such incapacity exists.

Another remedy that you can take is to file for divorce in the country that allows it. However,
you must first apply to be a citizen of that country before a petition for a decree of divorce can be
entertained by the courts. If you would chose this option, make sure that the country has lenient
naturalization proceedings to expedite the process of naturalization.

In either of the two remedies, this would allow you to marry Tatiana legally.

As regards to the second issue, Mr. Matulis is asking on his obligation to support his spouse after
he has married Tatiana. According to article 198 of the family code, if the spouses obtained the

1
FAMILY CODE, Art 36
2 GR No. 149498, May 20, 2004
Jester Kutch A. Olayta Section 1-A Legal Research
decree of annulment or legal separation, the mutual obligation to support each other would also
cease
3
. From the foregoing rule, your obligation to support Marsha would largely depend on the
success of the annulment proceedings against her. If such proceedings would be unsuccessful,
the obligation to support Marsha would not cease in accordance with article 195 of the Family
Code.

As regards to the third issue, the property which has the highest value is the house and lot which
is pegged at seven million. If you would want to maximize the benefit of the division of
properties, you should get the house. In order to do so, you will have to follow the rule on article
102(6) which states that:

(6) Unless otherwise agreed upon by the parties, in the partition of the properties, the
conjugal dwelling and the lot on which it is situated shall be adjudicated to the spouse with
whom the majority of the common children choose to remain. Children below the age of
seven years are deemed to have chosen the mother, unless the court has decided otherwise.
In case there in no such majority, the court shall decide, taking into consideration the best
interests of said children
4
.

Therefore, in order to get the ownership of the house, you should be able to get the custody over
Matthew.

As regards to the last issue, Mr Matulis contends to have custdy over their eight year old child,
Matthew. The applicable rule in this case is Article 213 of the code which provides that:

Art. 213. In case of separation of the parents, parental authority shall be exercised by
the parent designated by the Court. The Court shall take into account all relevant
considerations, especially the choice of the child over seven years of age, unless the
parent chosen is unfit
5


The above rule states that the court will be the one to decide on which parent should gain custody
of the child. An exception to this is a child that is below 7 years of age in which case it would
automatically belong to the mother. However it has been held in the case of Espiritu vs CA
6
that
the said rule no longer applies to children that are above 7 years of age. It now only depends on
the determination of the court on whether a parent is fit enough to have custody of the child.
Therefore, you should establish that your former spouse is unfit to have custody of the child.

One thing: my opinion is based on the laws and the jurisprudence applicable to your situation. If
by any circumstance you take your plight to court, I am confident that the case will be decided in
your favor.


Sincerely,


Jester Kutch. A. Olayta

3
FAMILY CODE, Art 198
4
FAMILY CODE, Art 102 par 6
5
FAMILY CODE, Art 213
6
GR No 115640, March 15, 1995, 242 SCRA 262
Jester Kutch A. Olayta Section 1-A Legal Research