Legum Baccalaureus

Mid-year Commencement Exercises
10.16.2012
Legum Baccalaureus 

What am I feeling? Ecstatic! It's not the thought of marching on that isle and sitting in the front row seat, symbolizing a higher degree achieved among others, but the thought that after all the hurdles you went through your entire years in law school, the final test (Bar Examination) is already a step closer. One last step and finally, finally, if God willing, everything shall all be worth it. I must say all of it does not end here yet; not yet. But the fact that you are this close to finally nailing your dream is gratifying for the moment. To the Big Guy up there, THANK YOU.

P.S.

Yes, I'm the shortest in the picture. 

Benipayo (29:46min) - Remedial Law| Evidence Transcription

If I am the examiner, I am sure that I will give you something about the provisional dismissal of criminal action, you know the rule on provisional dismissal of criminal action. You don't remember? In the case of Ping Lacson, that's the simplest way I can put it. You know what provisional dismissal is? It's not suppose to be a real ousting, final or permanent dismissal, sometimes they just order a provisional dismissal because of the initial failure of the prosecution to continue presenting evidence, postponement. So perhaps the judge may himself xxx I'll have this provisionally dismissed. Which means, generally, without prejudice to its re-filing kasi it's provisional, correct? But what is the rule there in provisional dismissal of criminal actions? The rule is, a case maybe provisionally dismissed with the express consent of the prosecution and the accused and notice to the offended party. So if there is provisional dismissal without the express consent of the accused, double jeopardy will lie. It will lie because he did not consent to it. Remember the rule on double jeopardy. When an accused has been convicted or acquitted or the complaint against him is dismissed without his express consent by a court of competent jurisdiction to where the accused has been arraigned, he can no longer be prosecuted for the same offense or for an attempt or frustration thereof for an offense which is necessarily or that which includes that which is xxx. Remember the rule on double jeopardy because there will always be a question about double jeopardy. You better concentrate on that but the topic on provisional dismissal is one good question. But if the case has been provisionally dismissed with the express consent of the accused, double jeopardy will not lie because he agrees to it. However, it cannot be provisional forever. At a certain point, it has to be permanent. And that is a question which actually bugged the judges. I repeat, if the accused expressly consented to the dismissal, there is no double jeopardy. But it can become permanent at a certain point. When is that? If, one year or two years, depending on the penalty. The case must be re-filed within one year if the imposable penalty does not exceed six years. If it exceeds six years, then it must be re-filed within 2 years. From when? That's the point. When do you count the 1 year or 2-year period? From notice to the prosecution not from the date of the decision of the action. And the express consent, when do you get the express consent? From mere silence. In other words, the accused must consent to it. There is no objection. You must put it in writing that there is no objection. Or, if he himself moved for provisional dismissal, no question, he gives his express consent. So 1 year, 2-year, if not re-filed from notice to the prosecution, then it becomes permanent which means that it can never be re-filed. Double jeopardy will certainly set in. 

Now if it is without the express consent, it will be subject to double jeopardy if it is re-filed; it may be re-filed beyond the 1 year or 2-year period. But the defense of double jeopardy or prescription may be invoked by the accused. That's the rule in provisional dismissal. 

Okay, what are we going to do this morning? What are you planning to do because I assume that you are already well grounded on the fundamentals. If you were here during the pre-bar and I lectured on evidence, I had a heart on the fundamentals, always the fundamentals, the basic. Because once you know the basics, pwede mo nang paglaruan. And the two basic principles that I am trying to impress upon you is first, the multiple admissibility of evidence rule. A piece of evidence must be offered and offered for a particular purpose and it is the purpose which will determine what rule of admissibility will apply. A piece of evidence offered for one purpose may be admissible, but offered to another purpose may be inadmissible. And the other principle is that evidence is all a matter of laying the proper foundation. xxx and procedural foundation. You remember that, don't you? 

Now, if you look at the rules of admissibility, each of them has requisites which must be established by way of foundation. You failed to prove one of those requisites, the rule will not apply. You remember for example the exception to the res inter alios acta rule. When is the statement of a conspirator be a statement also to his co-conspirators? There is an exception to the res inter alios acta rule but what are its requisites? The declaration must be made in relation to the conspiracy, during the xxx of the conspiracy, after conspiracy is proved by independent evidence. If any of these requisites is not obtained, then you don't apply the exception, you apply the general rule, res inter alios acta. In other words his statements will only lie as to him, the conspirator not to his co-conspirators. So that's what I mean by laying foundation. 

Sometimes the foundation is procedural. For example, when you only have a xerox copy of a document, you don't have the original anymore. Then you have to lay the procedural foundation. You prove that the original does not already existed, you prove that it has been lost or destroyed and that it can no longer be produced in court. If you failed to do that, the xerox copy or the second evidence may not be admitted. It is all a question of technique. 

So, knowing all these basic principles, what you have to do is to commit to memory the various rules and requisites the same as how you solve problems. Now I assume that you are already familiar with the basic and the rules on admissibility. Now what I plan to do today is to try some confidence building on your part. What I'm going to do is to review with you questions of evidence plus other questions and find out whether you can answer them and how you will answer them. Okay? Is that okay with you because if it's not, I am going home. Joke only, I think that is a good thing to do otherwise I am not going to do it. 

Okay, first question: May a private document be offered and admitted in evidence as documentary evidence or object evidence? It was asked last year but again, it's a good question. It can be asked anytime. May a private document be offered and admitted both as documentary evidence and object evidence? When is a writing considered as documentary evidence for purposes of this rule? If it is offered as proof of its content. That is the magic phrase there. A documentary evidence is any writing on any material offered as proof of its content. If you are not offering the writing to prove its content, you are only offering it to prove its existence, or if it is a xerox copy to prove that it exists, of if what you want to prove is the type of paper on which the document has been made, not inquiring into the contents of the paper, then that is not a documentary evidence for purposes of the best evidence rule but is merely object evidence. And if it is merely object evidence, you don't apply the best evidence rule. And what is the significance of that? If it is object evidence, you don't use the best evidence rule, meaning, you don't insist on the presentation of the original because the best evidence rule insist on the presentation of the original writing. Do you follow? 

Remember the case of People vs. Tandoy? He was charged of selling marijuana which is a violation of the law and it was a buy bust operation -a police officer pretending to be a buyer approached him and told him he wanted to buy marijuana.The consideration was P10.00 and the police officer gave him P10.00 and he gave the police officer the marijuana. At that point, there was an arrest through the buy bust operation. During the trial, the prosecution wanted to prove that Tandoy was xxx and that there was no need for him to present evidence - the money, the P10.00 bill. But what the prosecution presented was merely a xerox copy of the P10.00 bill not the original P10.00 bill. And it was the contention of Tandoy that that xerox copy of the bill should not be admitted as evidence because it was only secondary evidence, the original P10.00 was not offered as evidence. Was it admissible? What is the purpose? When you are asked what is the purpose, always ask, what is the purpose of the offer? Now the purpose of that offer was simply to prove that the P10.00 was xxx not to prove the content of the P10.00 bill. In that case, for that particular purpose, the P10.00 bill was simply object evidence. But if it was offered to prove writings on the P10.00 bill, supposing that is something special there, then it becomes a document then you will insist on presenting the original not just the xerox copy. 

It may also be best to remind you about the collateral fact rule. Do you remember that? The collateral fact rule in connection with the best evidence rule. The Air France vs. Carrascoso case, a passenger in the flight of Air France going to Europe. He bought himself a first class ticket. Carrascoso bought a first class ticket via Air France in going to Europe. In Manila, he boarded the plane and he was given a first class seat. But in a stop-over in Bangkok, he was asked to transfer to the economy class. Because ang sabi nung member ng crew of Air France, there was a mistake because this is reserve for a caucasian, the white man. "But I have a first class ticket", sabi niya, sabi naman nung crew, "I'm sorry sir, but there was a mistake but we have a seat for you in the economy section." Well, of course, he was fuming mad that he has to continue with his flight in the economy class. And when he came back, he sued for damages. Now during the trial, he was asked, among other things whether during the flight, he had any occasion to talk to any member of the crew and his reply was, "yes, I had a conversation with the porter of the plane." And the question to Carrascoso was this, what was your conversation about? He narrated what they talked about and among others he said that, well, incidentally, the porter told me that it was his job to keep a log book and in that log book, he noted the incident involving me. And what he noted in his logbook was in French and when translated to English is somewhat like this: A first class passenger, with confirmed reservation was forced to transfer to the economy class against his will and the captain of the aircraft did not bother to intervene. Eventually, Air France lost and Carrascoso got an award for damages so Air France appealed. And in the appeal, one of the errors assigned by Air France was that the court made a mistake in entertaining the testimony of Carrascoso with regards the content of the logbook as noted by the porter and of course, the best evidence would have been the logbook. Sabi ng Supreme Court, mali. Why? Because the contents of the logbook were not the subject of the inquiry. Remember the best evidence rule, when the contents of the documents are the subject of the inquiry, only the original is admissible. In the case of Carrascoso, the contents of the logbook were not the subject of the inquiry. What was the question asked of him? - What was your conversation all about? Malayo eh. The contents of the logbook was to mention only incidentally or collaterally, it was not really the subject of inquiry. Therefore, the best evidence rule would not apply. The logbook and the testimony would be admissible. 

Under Republic Act 8353, you may be found guilty of qualified rape if you knew on or before the commission of the crime that he is inflicted with Human Immunodeficiency Virus (HIV). You're all familiar with that noh? Not from experience but I mean, theoretically - acquired immune deficiency syndrome or any other sexually transmitted disease and the virus or disease is transmitted to the victim. Under Section 17(a) of Republic Act 8504, the court may compel the accused to submit himself to a blood test or a blood sample should be extracted from his veins, to determine whether he has HIV. Question: Are the rights of the accused to be presumed innocent of the crime charged and to his right to privacy and against self-incrimination violated by that policy of compulsory testing? I think you know the answer to that. 

The right against self incrimination refers only to testimonial compulsion. It does not include the body of the accused if the it is material. Only against testimonial compulsion. Since the rights of the accused are not violated considering that the compulsory testing is authorized by law, the result of the testing cannot be considered fruit to the poisonous tree and can be offered in evidence to prove the qualifying circumstance under the information for qualified rape. 

Okay, now this one involves hearsay evidence. Dencio entered into the house of Marcela, tied her into a chair and robbed her of assorted pieces of jewelry and money. Dencio then brought Candida, Marcela's maid, to a bedroom where he raped her. Marcela could hear Candida, crying and pleading, "Wag! Maawa ka saken!" Sounds like a soap opera noh? After raping Candida, Dencio fled from the house with the loot. Candida then untied Marcela and rushed her to the police station about a kilometer away and told Police Officer Roberto that Dencio had barged into the house of Marcela, tied the latter to a chair and robbed her of her jewelry and money. Candida also related to the Police Officer that despite her pleas, Dencio had raped her. The policeman had noticed that Candida was hysterical, and at the verge to collapse. Dencio was charged of robbery with rape. During the trial, Candida could no longer be located. Question: If the prosecution present Police Officer Roberto, to testify on what Candida had told him, would such testimony of the policeman be hearsay? Answer: No, the testimony of the policeman is not hearsay. It is part of the res gestae. Being that so, it is an independently relevant statement. The police officer testified in his own personal knowledge that the complainant had told him that despite her plea, Dencio had raped her. He did not testify to the truth of the statement, only to what he heard.  If the Police Officer will testify that Candida was hysterical and at the verged to collapse, would that testimony be considered as opinion, hence inadmissible? The answer: No, it cannot be considered as opinion because he was testifying on what he had observed. A witness may testify on his impression of the emotion, behavior, condition or appearance of the person. That is an exception to the Opinion Rule. You remember the Opinion Rule?

Generally, opinions are not admissible, right? Why? Because one's opinion, can be as good or as bad as the other person's opinion. What the courts are interested in are facts proved by evidence; not opinions otherwise there will be no end to trial. Now, the very exceptions though. What is the first exception? Expert witness may give their opinion after they are qualified as experts. How do you qualify an expert? Prove his expertise. You let him testify on his background, his experience, his educational attainment, etc. Give his testimony in court and how the court will regard his testimony. No problem about qualifying an expert, they are expert in qualifying themselves. Just ask them one simple question, tell us your education, background and experience and he'll give you his autobiography. But you can also dispense the qualification of an expert witness. How? By asking the adverse party to stipulate with you that he is an expert. If the other lawyer knows that indeed this witness is an expert, you simply stipulate, then you have a judicial admission which would dispense with proof of his expertise. And of course the third one is if the court takes judicial notice of the expertise of the witness. There is no need if the Judge would say that on account of my judicial prowess, I know he is an expert, you go straight to the point. 

By the way, when a witness is asked by a question and he gives his opinion, his valued expert opinion, he must not be stopped there. He must be asked, what is your reason for your opinion? He must give his justification or reason for his opinion. That is required. 

Now, ordinary witnesses may give their opinions on very limited matters. What? Identity of persons whom they know, handwriting of a person whom whose handwriting they are acquainted, or the mental sanity of a person of whom they are acquainted or have known very well. But basis must be laid and what is the basis? If you ask, whose handwriting is this? Well that is the handwriting of Mr. X. Hindi naman nya nakita eh, so he's giving an opinion. Is that enough? No. Why do you say that that is his handwriting? How do you know? That is the basis. The acquaintance, the familiarity, the knowledge must be established otherwise, the opinion will not be admissible. 

Impression of a person,  behavior, appearance, emotions, etc. - exception to the Opinion Rule. 

By the way, going to the hearsay, we all know what hearsay evidence is, noh? You connect hearsay with qualification of witnesses. Because witnesses can testify only as to matters within their personal knowledge. If he testified on what other people had say, and the intention and the purpose is to prove the truth, that is hearsay. But if the purpose is simply to prove what he heard, that is admissible evidence because that is personal knowledge of what he heard and not the truth of what he heard. There are many exceptions to the Hearsay Rule. I suggest you take note of them because a question may be asked what are the exceptions to the Hearsay Rule? It's best that you'll be prepared for them - Dying declaration, Res Gestae, etc., Deposition of testimony for trial or pleading. Just take note of what they are and also the elements which would qualify them as exception to the Hearsay Rule. 

Albano (30:01min) - Persons and Family Relations Transcription

Just look at the provisions of the law what determines the successional rights of a decedent - it's his Natioanl Law. Since National Law is no longer Philippine Law, American Law shall now govern the successional rights of the said person. That is of the same if it is a foreigner coming here in the Philippines also executing a will and then instituting it, etc. then it shall be submitted to probate. What determines the successional rights of the person is not the Philippine Law but his National Law. So that by way of the principle of 'renvoir', American Law will apply - Philippine Law will apply, as long as the national law of that person is concerned. The exception there is in the case of Velez v. Velez. In this case, there are two national laws of the person. How can you now determine the successional rights under these two national laws? In this case, you have to determine the 'domiciliary law'. That is the exception to the national law theory where the domiciliary law theory will come into the so called the national theory. That is the situation in Article 16.

What about the principle of lex loci celebraciones? If there is a will that is executed in the United States where there is only one witness but it was subscribed and sworn to before a Notary Public of the United States, then, what is the rule? The formalities can be governed by the law of the place where it was executed but with respect again to the order of succession, the amount of the successional rights, the intrinsic validity of the will and the capacity to succeed will be governed by the national law of the person whose succession is under consideration. So that all these things must be looked into. Article 15, 16, and 17 of the Civil Code. If ever there is a violation of your right, remember the general provision of Article 19 of the Civil Code that if ever there is one who exercises a right, if ever there is one who performs his duties but injures the right of the other persons, then even with the exercise of the right or even in the performance of one's duties, if you injure the right of another, then you can be liable for damages. That is the rundown in the case of Manuel v. People of the Philippines. A man who was already married misrepresented himself to be single to a woman. Then courted that woman (single). Then got married to the single woman while pretending to be single. Thereby depriving the woman of a claim to be married to a single man, or to cohabit with a man who is going to be legally married to her as the case maybe. That is the turnout of the case maybe. But the man turned out to be a married man. Then this woman went to the Bureau of Census and Statistics and discovered that this man was married. She prosecuted the man for bigamy and prayed for moral damages. For the first time in Philippine jurisprudence as in the case of Manuel v. People of the Philippines, a person is charged with and convicted with a crime of bigamy and held for damages. Because when he misrepresented himself to be single, then that is a violation of the right of the woman to know the status of the person. When he got married to this woman knowing that he was already married, then that is contrary to law - violation of Article 20 of the Civil Code. Then, when he left the woman without any reason at all after the celebration of the marriage, he was depriving the woman to have a legally wedded husband. The Supreme Court said, the totally of all these acts would mean that you are liable for damages. The totally of your act is also contrary to moral. So, pursuant to Articles 19, 20 and 21, that person who was held liable for bigamy was also held liable for damages for the first time in Philippine Jurisprudence. So if ever there is an abuse of right, you have the right and I have the right to respect your duty and right and I violate your right, then you have a court of action against me.

Then let us move a little forward dun sa Civil Independent Actions, Article 29, 30. 31, 32, 33 and 34 in relation to Article 3176. Get ready with these also when you go to Criminal Procedure under the Rules of Court in the fourth Sunday. Dangerous eto sa Criminal Procedure. Kung hindi dito, dun pupunta yan. What is this sought for damages that you are going to reserve? The filing of the criminal carries with it the filing of the civil unless you made a reservation. But if it is based on Articles 32, 33, 34 and 3176, there is no need for reservation. But what is needed for purposes of reservation is that if ever there is a criminal case, and there is a civil action that is supposed to be filed, arising from the crime charges of felony, that is what you are going to reserve. Because if you do not make a reservation of the same, or if you do not waive it or if you do not file it ahead of the criminal, then that is going to be considered as impliedly filed with the criminal action. But you do not make a reservation as I've said, with regards to damages arising from Article 32, 33, 34 and 3176 because they can be prosecuted independently of the criminal action - double bladed situation in so far as this part is concerned. Just to give you the idea.

Then what about this prejudicial question? You remember the bigamy case that was filed in the case of Mercado v. Tan where that man was married although it was void according to him. Then he went to Cebu and contracted a subsequent marriage. He was prosecuted for bigamy by the first wife but during the pendency of the action for bigamy, he filed an action for declaration of nullity of the first marriage and asked for the suspension of the criminal case on the ground of a prejudicial question. Supreme Court said, NO. Because the element of a prejudicial question would show that there must be filing of the civil ahead of the criminal of an issue of a crime or interrelated with one another such that the resolution of that civil would also preempt the resolution of the criminal or determine whether the criminal will proceed or not. That is the prejudicial question but not in this case of Mercado v. Tan. It says so that under the provisions of Article 39 of the Family Code in relation to Article 40 of the Family Code, if your marriage is void, you just have to have it declared void because of the principle that the absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void. You cannot decide for yourself the validity of your marriage. Otherwise, you cannot escape, scratch free from liability.

Then let's move forward to the simpler provisions of the law because there are times when they go to these kinds of problems. What is the meaning if you are going to be considered as born? Birth determines personality but for civil purposes, the unborn fetus shall be considered born for purposes favorable to him. So that if there is a donation to an unborn fetus, that is favorable to the unborn fetus. It's not a valid donation. It will depend whether he will comply with the requirements of birth. Birth determines personality. If you donate to that fetus, if the fetus has an intrauterine life of only four months, or five months at the time of the donation, but when he was completely separated from the maternal womb, the xxx is that he was only there at the womb of the mother for only six months and twenty days then he was able to survive in a period of 24 hours, is the donation valid? VALID. Because he survived beyond 24 hours. That child is considered as born that is if the intrauterine life of that fetus is less than 7 months, the requirement for him or her to be born is life for 24 hours. And because of that life for 24 hours, then that child will now acquire juridical personality and upon the death of a person with juridical personality, then he passes to his heirs the right of inheritance. However, if he does not survive, then he does not pass any hereditary rights.  Because of the fact that he was never been considered as having been born. You have to consider the intrauterine life and the life of the person. But if the intrauterine life is 7 months or more, then the child is going to be considered as alive, for example, even if he lives for only 1 or 2 or 3 seconds, is that person going to be alive? YES, because of the fact that under the provisions of the law, for as long as the child is alive by the time of the complete separation from the maternal womb, then the child can acquire juridical personality. And because of that he is going to have the capacity to act and then to transmit the moment there is death on the part of the said child. This is the purpose of this area - Articles 40, 41 and 42 of the Family Code.

Then try to consider also the law on domicile. Well tapos na kayo, nakalampas na kayo jan... domicile and residence are synonymous for purposes of Election. Lampas na kayo jan, pero hindi pa. Baka matamaan kayo sa procedure. Because they had the contention in the case of San Luis vs. San Luis, that is governor San Luis was born in Laguna and resident of Muntinlupa at the time of death. What is the venue for the settlement of estate? Residence. But the children were contending that since our father was born in Laguna, then you file the petition for the settlement of estate of our father in Laguna because residence anyway is synonymous with domicile. Yes, that is good for election purposes because of the two Romualdez cases but not in the case of settlement of the estate because residence is actual residence for purposes of settlement of estate.

Then we go to the law on marriage. What is marriage? You know that. Then what are the requirements of a valid marriage? You have consent, I have the legal capacity, you have the license, you have the celebration, you have etc.

We go to consent. Whose consent? I think you know that. Consent of the parties and not of the parents. Legal capacity. I was telling you earlier that if these two people got married and they were minor by the time they got married, even if that marriage was valid when it was celebrated, it is void in the Philippines. Because what determines the validity of the marriage is not the law of the place where the marriage was celebrated but it is determined by Philippine law. So that if ever there is a marriage that is void, you do not also have the legal capacity to contract marriage because a void marriage is even a legal impediment to marry because of Article 40 of the Family Code where we said that if ever there is that void marriage, you have to have it declared void because the absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment. Solely, means the judgment and you cannot determine for yourself the invalidity of your own marriage.

Then you should have these persons solemnizing the marriage whom you are going to appear personally. So that a question might be asked: Is a proxy marriage valid here in the Philippines? Number 1, it depends upon where it was celebrated. If it was celebrated abroad and valid there as such, valid because of Article 26, paragraph 1. If it's valid where it is celebrated, then it is valid here in the Philippines. It is not one of those exceptional situations when we considered it void even if valid when it was celebrated as provided for by Article 35, par. 1, 4, 5, 6 and Articles 36, 37 and 38. It does not fall under any one of them. However, if it was celebrated in the Philippines, void in the Philippines because the law requires the physical and personal presence on their part in order to manifest to each other and to the solemnizing officer that they take each other as husband and wife. That is the principle in proxy marriages.

Then try to consider also the authority of the solemnizing officer. May a Mayor solemnize a marriage outside of Quezon City? Well of course, there is nothing wrong if he is going to do it but he will be charged administratively, he will be charged criminally, he will be charged civilly. He might be held civilly liable. It does not affect the validity of the marriage. You look at the case of Navarro v. Domagtoy, where a Judge of a particular place in Surigao del Sur solemnize the marriage outside of the territorial jurisdiction of his Court. He was charged administratively and fined with an amount of P20, 000. But the mere fact that there is infirmity in one of the formal requisites of the marriage, Article 4 says that does not affect the validity of the marriage; it is still valid but it affects the liability.It affects the triple responsibility of the public officer. Ano ba yung triple responsibility? Lampas na kayo jan sa Political Law. Triple responsibility, discussed fully. The problem is that, is it valid? YES. Because that is only an infirmity. On the part of this case of Navarro v. Domagtoy, there was infirmity, he was merely held liable for P20, 000 in the amount of time. There was an administrative case.

So what about the license? You have to look into the enumeration. What are the marriages that are valid even if there is no license? Well, remedy, you can pick up yung 'articulo mortis', maybe you can pick up yung 'the mohammedan', maybe you can pick up the situation where they have been living as husband and wife without the benefit of marriage but no legal impediment to marry one another. That pursuant to the case in Ninal v. Bayadog, that it must be characterized by continuity and exclusivity. Therefore it is not sufficient that you have the capacity at the time of the celebration of the marriage but you should have capacity during the five year period of the cohabitation otherwise, the Supreme Court said, you are going to sanction immorality. The Supreme Court said that the law doesn't sanction immorality. The requirements of a valid marriage. Enumerate the requirements of a valid marriage. What are the requirements of a valid marriage? Sabihin mo, the requirements are the following: The essential and the formal. Discuss it fully. Then enumerate the situation, exceptions, etc., yun. These are the requirements of a valid marriage. That is if a marriage is celebrated outside of the Philippines, and valid in accordance with the laws therein, that is valid in the Philippines; except as provided for in Articles 35, 36, 37 and 38. Meaning therefore, what determines the validity of the marriage is not the law of the place but it is determined by Philippine law with respect to the age, with respect to the validity of the marriage because of the fact that there were two marriages although they were void. We were just saying that you just got to have the two marriages declared void because of Article 40 of the Family Code. That if ever there is psychological incapacity for example, but it was celebrated outside of the Philippines, is it not that it is void? Even if the manifestations of psychological incapacity will come out after the celebration of the marriage, then that would still be void. You just got to have it declared void before you can contract a subsequent marriage.

But you have to remember also the enumeration. That if ever there is marriage between two people who are closely related by blood, yung mga incestuous marriages, even if celebrated outside of the Philippines, valid in accordance with the laws therein, void in the Philippines. Again because of the fact that what determines the validity of the marriage is not the law of the place where the marriage was celebrated but it is determined by Philippine law. If there is a person who gets married to the adopted or vice versa, the wife, etc., yung first degree cousin as the case maybe, people who were adopted together, then, even if the marriage is valid where it was celebrated, determined by Philippine law, it is also void by reason of public policy. That even if these marriages are valid in accordance with the laws therein, they are void in the Philippines - yung psychological incapacity cases. What are you going to allege in psychological incapacity? You have to allege that these two people are incapable of complying with their essential duties to the marriage bond. That is psychological incapacity. Then you allege the external manifestations of psychological incapacity. And this psychological incapacity must be characterized by its juridical antecedents then impurability - that it is grave and impurable. What are the characteristics? Juridical antecedents, that even prior to the marriage, it was already there but it manifest only after the marriage. It is only after the celebration of the marriage that you see it. That is what you are going to allege - that there is incapability of this person to comply with the essential duties to the marriage bond. Try to look into that case of Zamora v. Court of Appeals because if you look at the characteristics of the xxx there is one decision of the Chairman that was asked. Decision nya yan, yung Zamora v. Court of Appeals. You have to allege them but you do not need to have an expert anymore because the totally of the evidence will be sufficient to prove that there is psychological incapacity on the part of the said person. Psychological incapacity cases in the provisions of Article 36 of the Family Code.

Then try to look into the provision of Article 41 of the Family Code. Because of the fact that if there is a spouse that is declared as absent , presumptively dead, an absent spouse is declared presumptively dead if your spouse has been absent from the conjugal dwelling under the circumstances provided for under the provisions of Article 391 of the Civil Code - yung war, yung ship, yung vessel, yung airplane; that fellow who has not heard the whereabouts of his spouse, then he can go to court for the declaration of presumptive death. There must be a declaration of presumptive death. The purpose there is to prevent you from being charged of the crime of bigamy. You look at that case of Manuel vs. People of the Philippines, where that fellow did not go to court to have the absent spouse be declared presumptively dead, that's why he was prosecuted for the crime of bigamy and then he went saying, "I was in good faith given the fact that I did not know the whereabouts of my spouse for a period of 21 years or even more". The Supreme Court said, the basis of good faith is the declaration of presumptive death. That under the provisions of Article 349 of the Family Code, you have to go to court to have your absent spouse be declared presumptively dead for your protection against the prosecution for the crime of bigamy. Now the problem is that, you are going to court to have the absent person declared presumptively dead because you are not aware of the whereabouts of your absent spouse, but remember, serious efforts that has to be exerted must be alleged and must be proven. You remember the cases of Domingo vs. Domingo, Republic vs. Nolasco, Republic vs. Court of Appeals where the Supreme Court said, in all of these cases that you did not exert effort in order to locate your spouse, the mere fact that your spouse has been absent but there are no serious efforts, they said in the case of Nolasco, your efforts are merely sketchy efforts in order to locate your absent spouse, then that person cannot be declared presumptively dead. But in the case of SSS vs. Baylon, the Supreme Court said that, if there is declaration of presumptive death, now you can get married. The present spouse who does not know the whereabouts of the absent spouse can get married. But the problem is, what is the rule if there is going to be an affidavit of reappearance that is registered by an interested person with a notice to the second marriage, then that will terminate the second marriage automatically. But suppose your spouse has been declared presumptively dead, personally and physically reappears but he does not do an act to register or even to nullify your marriage? Then he is still presumed dead as far as the law is concerned - presumptively dead; that physical reappearance of the person will not terminate the second marriage, that marriage remains to be valid. Because the operative fact that will terminate the second marriage is the registration of the affidavit of reappearance on the part of the said person - SSS vs. Baylon.

Then you go to the voidable marriages. What are the voidable marriages? Enumeration of the voidable marriages but just try to look into them because there might be fraud, intimidation, there might be false. But what about that fraudulent act? What are the fraudulent acts that are provided for under Article 46 of the Family Code? That is an exclusive enumeration. Why do you say that that is an exclusive enumeration? Because of the 5th paragraph of Article 46 - no other misrepresentation. That means therefore, that if there is misrepresentation as to your rank, as to your character, as to your fortune, then the court will always say that, no, that is an exclusive enumeration. But please remember that if there is a marriage that is declared void by reason of psychological incapacity, or if there is a marriage that is declared void because of the reason of mistake in identity dun sa last paragraph of Article 35, there was that marriage that was declared void in those two situations, but prior to that there is that birth of a child. In Article 54 of the Family Code, that child is going to be considered as a legitimate child. Pursuant to the principle in the case of Suntay vs. Suntay, if there is a marriage that has been declared void under the provisions of Article 36 - psychological incapacity, a child is born prior to the declaration, the child is considered a legitimate child. Because the framers of the Family Code has said that you cannot blame the child for the misfortune or the misgivings of the parents. That's why there is always that presumption that the child is legitimate provided that the child is conceived or born prior to the declaration of nullity in the provisions of Article 36 and the last paragraph of Article 35 of the Family Code. 

Then legal separation. Enumerate the grounds for legal separation, discuss fully and give examples for each. 2 points. 2 points, ha. Don't laugh at 2 points, hoy, because that will make you number 1! or that will make you a lawyer. Ganon yun, do not laugh at 2 points, even 1 point, even half point, even .01 because there will always be a... difference. Di ba? There will always be a difference. Please lang noh, please lang, I'm just making a joke out of it because this kind of question will not be asked but in case lang, by accident. Kung aksidenteng itanong yun, eh di tapos tayo! But the grounds for legal separation. But remember that if that kind of situation, that instance, if ever that action for legal separation maybe dismissed. Because there maybe condonation, there maybe consent. The condonation of one act does not give rise to the condonation of other acts. That pursuant to the principle in the case of Bugayong vs. Gines, the Supreme Court said that all the acts must not be condoned. The condonation of one act does not carry with it the condonation of the other. That if ever you caught your spouse in flagrante delicto, having sexual intercourse with her paramour, but you will sleep with your spouse later on, make love to your spouse, then that is condonation. But it does not follow that if there is going to be reiteration, because he will not only be a habitual delinquent but a recedivist, di ba? Hmmm, recidivist, ha... then the condonation of one does not carry with it the condonation of the other pursuant to the principle in the case of Bugayong vs. Gines. 

As far as prescription is concerned, pursuant to the principle in the case of Brown vs. Yambao, the Supreme Court said, that even if you do not interpose that defense of prescription, the court can even take cognizance of the period of prescription because of the preservation of the marriage by the State; because the State must preserve the marriage, it being the foundation of the family and the family is the foundation of our society. That's why even if you don't interpose it, or even if there is no answer at all, if the Fiscal or the Judge will determine later on that it has already prescribed pursuant to Brown vs. Yambao, the court can take cognizance of the period of prescription, the court will dismiss the action for legal separation. Yung mga cooling-off period for 6 months, there is no default in legal separation because you have to prove the grounds for legal separation but if outside of these grounds for legal separation having been proven, there is a confession of judgment, oh, even if there is a confession of judgment plus evidence aliunde, but confession of judgment alone in an action for legal separation does not warrant the issuance of the decree of legal separation.

Tomorrow's Promise

Yes, there will be darker days...

There will come a day that your sun shines away.

A day when flower wither and waters run dry...

And you can't even play your favorite song.

Yes, there will be sad days...

There will come a day you feel the loneliest.

A day when nothing else matters but your pain...

And you can't even utter a single sweet word.

Yes, there will be silent nights...

There will come a cold night.

That night you're left to embrace yourself and imperfections...

And you can't even hold back the tears. 

But, there will be brighter days thereafter...

That day when all promises and wishes come true.

A day the flowers start to bloom and fountains overflow...

And you can't stop singing your favorite song. 

If

If you fall in love with me, know that you also fall in love with my imperfections, my insecurities, my fears and my idiosyncrasies. There will always be a tendency that I'll get clingy and by then understand that it's due to my in depth feelings that I fear I might lose the comfort you are making me used to. 

If you fall in love with me, know that most of the time you see me at the lobby puffing my smoke with a cup of coffee on the sides and you must understand that even before you came, these have been my constant lifelines. 

If you fall in love with me, know that I embrace poetry next to my faith. And may your interest never run dry whenever I read or share poems with you. I have always been a fan of Edgar Allan Poe, Machiavelli, Nietzsche, Lao Tzu, Emily Dickinson, Shakespeare and anything wordy and sweet. My tendency to magnify an author's mind may be disrupting sometimes. I love Paulo Coelho and Bob Ong and Dan Brown. It might be overbearing. 

If you fall in love with me, understand that I love rainy days in as much as I love the sun. Do not be surprised if you see me walking under the rain and become dreamy thereafter. There is something in how the rain drops sound whenever it hit the tin roof. It takes me to another realm. And I would not mind not doing anything at all rather than in bed beside you talking about anything in life or share a cup of brewed. 

If you fall in love with me, know that there are times I want to miss you. I'm not the type who constantly communicates through mobile but I would be really glad if you constantly ask how I am doing. Those simple words can make a big deal. And if I don't call back, I might not have snapped back from being engrossed in a particular book or I am writing just like now. 

If you fall in love with me, know that I value friendship. I go out with my girl friends and enjoy a round of drinks and even giggle over girl talks. This is unadulterated fun that there is no way you have to be jealous.

If you fall in love with me, I hope you never get tired of hearing my girl stories and laugh with me. I hope you make yourself stronger when I am at my weakest and may your shoulders be ready whenever I'm about to cry to a sad movie. 

If you fall in love with me, know that I'm short with patience. I hate waiting and mostly I hate to be awaited. And if ever you promise, I hope you never breaks them. 

If you fall in love with me, do fall for who I really am. Not because you associate me with another, nor you wanted me to become somebody I am not. 

If you fall in love with me, fall in love with me with no pretenses. 

Adieu!

Adieu, adieu, adieu, that's how I bid to you! 

For bitter and sweet but mostly bitter memories

I long to say the words to you: adieu, adieu!

And if I turned out sour of life, I blame all thee to you.

For the lies, the whole lies and nothing but the lies, 

I must say, adieu, adieu, adieu!

Days Gone By


I wonder of days gone by, 

Of clear skies and vast rice fields.

The smell of summer hay and sweat,

Of runs, rubbers and mangoes.

I wonder of days gone by,

Of water lilies and streets.

The full moon and candle lights,

Of kites, water guns and brooks.

I wonder of days gone by,

Of colored pens and bed time books.

The Jack and the Bean Stalk and goofs,

Of good night kisses, hugs and tickles.

I wonder of days gone by,

Of magic coins and slipper games. 

The playhouses built and burned,

Of wounded knees, dirty toes and crappy clothes.

I wonder of days gone by,

Of dressing dolls and paper planes.

The Jack's Stone, pogs and marbles,

Of floaters, hide and seek and dancing balls.

I wonder of days gone by, 

Of all the games I played thereby.

The laughter-filled days and nights,

Of guitar strings and close ties.

I wonder of days gone by,

Those days.

I keep wondering,

How they have gone by.