JAVERLE, CATTLEYA JADE A.

IV-Arellano
Legal Counseling

Personal Interview

Name of the complainant is Mary Joy Diaz, 38 years old and a resident
of Tibanga, Iligan City. Its complaint is against her husband, Erik Baliw, 38
year old and a resident of Linamon, Iligan City. Based on a personal
interview with the complainant, the facts are as follows:

a) Ms. Joy Diaz was an Overseas Filipino Worker (OFW), working as a

nurse in Saudi Arabia.
b) That sometime in 2009 he met Erik Baliw who was also an OFW in
Saudi Arabia who worked as a safety officer.
c) They were in a relationship at that time and Ms. Diaz got pregnant
so they decided to get married.
d) In 2011, the complainant and her husband decided to come home
in the Philippines a month before Ms. Diaz gave birth to their child.
e) Two months after she gave birth, they came up to a decision that
the complainant will only be the one to go back in Saudi Arabia to
work and her husband will stay here in the Philippines to look after
their child since Ms. Diaz has greater salary income than Mr. Erik
Baliw.
f) After more than a year of their set up, Ms. Joy Diaz has her
vacation every 5 months and came home in the Philippines,
observed that her husband changed.
g) She observed that the money amounting Php20,000 he sent
monthly was not enough for her husband and child for some
questionable reasons.
h) Then in the early 2013, while Ms. Joy Diaz was in Saudi Arabia, she
heard rumors from Mr. Erik’s friends that her husband is having an
affair with someone. He ignored all of it and continued their
relationship.
i) When the complainant was on her vacation here in the Philippines
in May 2013, he finally caught her husband having an affair with
another woman.
j) The complainant also suspects that her husband is using illegal
drugs. They were in turmoil at that time until she went back to
Saudi Arabia.
 k) After her next vacation, her husband got worst, Mr. Erik Baliw
publicly posted in his social media account naked photos of her wife
Ms. Joy Diaz.
l) Not satisfied, Mr. Erik Baliw verbally and physically abused Ms. Joy
Diaz when they are in an argument.
m)As recourse, Ms. Joy Diaz reported his husband to the NBI to report
the photos posted by her husband and was ordered a Temporary
Restraining Order (TRO) from her wife and child.
n) The concern of the complainant at this moment is whether his
husband can still have custody to their 8 year old child. Since Mr.
Erik Baliw has been living with another woman and has a son
without annulling the marriage with Ms. Joy Diaz.

Recommendation

Based on the facts of complaint, the case was resolved by the

TRO filed by the complainant roughly seven (7) years ago. However, this
remedy is for short-term only since a TRO has prescriptive period.

I would strongly recommend to the complainant to see a lawyer

to get an advice so she can file as soon as possible for legal separation or
annulment of their marriage. However, in my opinion, legal separation won’t
do since her husband has now been living with another woman and their
child since they ended their relationship. Thus, the better remedy for her
case is to file a declaration of nullity of their marriage.

The Civil Code provides that the declaration of nullity of

marriage applies to marriages that are null and void from the beginning
(void ab initio), due to the absence of at least one of the essential or formal
requisites of marriages. It is convenient to classify these void ab initio
marriages into five categories: (a) void marriages due to lack of requisites
(Family Code [“FC”], Article 35); (b) void marriages due to psychological
incapacity (FC, Article 36); (c) incestuous marriages (FC, Article 37); (d)
marriages against public policy (FC, Article 38); (e) bigamous marriages (FC,
Article 41); and (e) void subsequent marriage, when one of the spouses
remarry without complying with the record requirement of the judgment of
annulment or absolute nullity of the previous marriage, etc. (FC, Article 52
and 53). The requisites for each of the aforementioned grounds are more
specifically described in the Family Code and in cases decided by the
Supreme Court.
 The declaration of nullity of marriage is distinguished from
the annulment of marriage, which considers the marriage valid and existing
until it is annulled. The grounds for annulment of marriage must have been
existing at the time of marriage, and include lack of parental consent (FC,
Article 45[1]), insanity (FC, Article 45[2]), fraud (FC, Article 45[3]), duress
(FC, Article 45[4]), impotence (FC, Article 45[5]), and serious and incurable
sexually transmissible disease (FC, Article 45[6]).

The declaration of nullity of marriage is also different from legal

separation, which is a legal remedy for couples suffering from a problematic
marriage. The grounds for legal separation may have arisen after the
marriage, and may be filed on the grounds provided under Article 55 of the
FC). In legal separation, the couple is allowed to live apart and separately
own assets. However, legally separated couples are not permitted to
remarry, since their marriage is still considered valid and subsisting.

As to the custody of their child, a joint custody will be awarded unless

the children have not reached the age of seven. For children below seven
years old, the custody will be given to the mother and the father is given
visiting privileges.  Since their child is nine (9) years old already, she can
now choose if she wants to live with her mother or father.