Lingat, Patrick M.

BSLM 4A

Midterm Exam for Legal Research

Legal Advice

QUESTION:

Edward Richards, an American citizen, married Maria Santos, a Filipina. They got married in
the Philippines. After 7 years of marriage, they realized that their marriage wasnt working out
the way they both wanted to. Maria and Edward have two children, one is 3 years old and the
other one is 5 years old. Edwards want their marriage annulled here in the Philippines and he
also wants to have the custody of their children.

Edward now wants to seek your legal advice on the matter. What will be your legal advice to
him with regard to his case?

ISSUES:

Whether or not Edward can have the custody of their children

Whether or not Edward can annul his marriage with Maria Santos

1.) Based on Article 213 of the Family Code of the Philippines, it provides that 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.1 In the
situation of Edward, both children are under the age of seven.

2.) So therefore, if Edward Richards really wants to have the custody of their children, he
should prove upon the court that he is the innocent spouse between them as cited in

1 Art. 213 of the Family Code of the Philippines

 Article 63 Par. 3, The custody of the minor children shall be awarded to the innocent
spouse, subject to the provisions of Article 213 of this Code.2

3.) The general rule for as to custody for children as prescribed in Article 213 of the Family
Code of the Philippines is that no child under seven years of age shall be separated from
the mother, unless the court finds compelling reasons to order otherwise. This rule is not
absolute because even a mother may be deprived of the custody of her child who is seven
years of age for compelling reasons.3

4.) The examples of these compelling reasons are neglect, abandonment, unemployment and
immorality, habitual drunkenness, drug addiction, maltreatment of the child, insanity, and
affliction with a communicable illness. Negligent and careless failure to perform the
duties of parenthood is a significant element of abandonment, regardless of actual
intention. A strong basis for a finding of the parents abandonment of his or her child is
found in the case where the parent has left the child permanently or indefinitely in the
care of others, given it to another, or surrendered it entirely.

________________________________________________________________________

1.) Based on Article 45 of the Family Code of the Philippines, it provides that A
marriage may be annulled for any of the following causes, existing at the time of the
marriage:

(1) That the party in whose behalf it is sought to have the marriage annulled was eighteen
years of age or over but below twenty-one, and the marriage was solemnized without the
consent of the parents, guardian or person having substitute parental authority over the
party, in that order, unless after attaining the age of twenty-one, such party freely
cohabited with the other and both lived together as husband and wife;

2 Art. 63 Par. 3 of the Family Code of the Philippines

3 Art. 213 Par. 2 of the Family Code of the Philippines

 (2) That either party was of unsound mind, unless such party after coming to reason,
freely cohabited with the other as husband and wife;

(3) That the consent of either party was obtained by fraud, unless such party afterwards,
with full knowledge of the facts constituting the fraud, freely cohabited with the other as
husband and wife;

(4) That the consent of either party was obtained by force, intimidation or undue
influence, unless the same having disappeared or ceased, such party thereafter freely
cohabited with the other as husband and wife;

(5) That either party was physically incapable of consummating the marriage with the
other, and such incapacity continues and appears to be incurable; or

(6) That either party was afflicted with a sexually-transmissible disease found to be
serious and appears to be incurable.4

If Edward Richards wants to annul his marriage with Maria Santos, I would advise him
that he should prove upon the court at least one of the following grounds for annulment in
order for the court to grant his petition for annulment and therefore giving him the right
for custody over his two children.

4 Art. 45 of the Family Code of the Philippines