I.

A. Legal Opinion

In so far as the desire of Eric to cut all the ties with his wife, Solar, I will primarily
advise them to undergo Marriage Counseling Session where they may be able to talk their
differences. If there will be even a sliver of chance of reconciliation, this may serve as a
good avenue to settle their disputes and might save their marriage. I will remind Eric that
the settlement might not only redeem themselves but will, as well, ensure a better future
for their daughter, Wendy, who still a minor and undeniably the most affected party. The
proposed Marriage Counseling will not merely concentrate as to the resolution of their
stained relationship but will open their hearts and minds as to the worse possible effect of
the same to their daughter.

If the same does not work, then I will enlighten Eric with respect to his desire to
cut all the ties with Solar and contract another marriage, to wit:

What is Legal Separation?

Legal separation is a legal remedy for couples suffering from a problematic

marriage. 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. Legal separation dissolves the property
relations of the spouses and removes the guilty party’s capacity to inherit from the
innocent party.

Effects of Legal Separation:

1. The spouses may live separately from each other, but the marriage bond is still in
effect and shall not be severed.
2. The custody of the minor children shall be awarded to the innocent spouse, but no
child under 7 years shall be separated from the mother unless there are compelling
reasons.

In the case at hand, since Erik intends to remarry, Legal Separation is of no

application. Evidently, Erik wanted an Annulment of Marriage to fully discharge himself
of the marriage with Solar. Further, Legal Separation does not actually dissolve the
marriage but merely allows the spouses to live apart and separately without the freedom
to remarry.

Under Philippine Laws, the remedies available for the dissolution of marriage are
as follows, to wit: 1] Annulment of Marriage as provided in Article 45 of the Family
Code; and 2] Declaration of Nullity of Marriage based on Psychological Incapacity as
provided in Article 36 of the Family Code.
What is Annulment?

Annulment is a broad term for two types of dissolving a marriage. A voidable

marriage is valid until annulled and thus will have legal effects after the annulment. A
void marriage on the other hand, is void ab initio or void from the beginning.

Article 45 of the Civil Code provides the grounds for an annulment of 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. 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.

With this, concealment of the abortion of Solar is definitely not one of those valid
grounds for an annulment of marriage to prosper. Congruently, Erik cannot, likewise, file
for an annulment given the fact that none of the enumerated herein grounds for the same
is present. Leaving Erik no other remedy but to file for Legal Separation without having
the right to be remarried or rather reconcile with Solar and start a new life.

Article 36 of the Family Code speaks of Psychological Incapacity:

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.
 For Psychological Incapacity to prosper as a ground for nullity of marriage, it must
be characterized by a) gravity, b) juridical antecedence, c) incurability.

In Del Rosario vs. Del Rosario and Court of Appeals (GR 222541, Feb. 15, 2017):

“The policy of the Constitution is to protect and strengthen the family as the basic
social institution, and marriage as the foundation of the family. Because of this, the
Constitution decrees marriage as legally inviolable and protects it from dissolution at the
whim of the parties. In this regard, psychological incapacity as a ground to nullify the
marriage under Article 36 of the Family Code, as amended, should refer to the most
serious case of psychological disorders clearly demonstrative of an utter insensivity or
inability to give meaning and significance to the marriage. It should refer to no less than a
mental-not merely physical-incapacity that causes a party to be truly in cognitive of the
basic marital covenants that concomitantly must be assumed and discharged by the
parties to the marriage, which, as provided under Article 68 of the Family Code, among
others, include their mutual obligations to live together, observe love, respect and fidelity,
and render help and support. In other words, it must be a malady that is so grave and
permanent as to deprive one of awareness of the duties and responsibilities of the
matrimonial bond one is about to assume.”

In this ground, it is Eric who should prove or establish the evidence that Solar is
psychologically incapacitated to fulfill her marriage obligations and more so, prove that
Solar is incapable of carrying out the ordinary duties required in marriage.

As to the Custody of the Child:

Eric wanted the exclusive custody of their child, Wendy; however, Erik must be
reminded that it is the child’s best interest which should be given paramount priority.

In relation to custody (Article 213 par 2), the general rule is 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.

In the case of Tonog vs. Court of Appeals, GR 122906, 7 February 2002:

“However, if a child is under seven years of age, the child shall not be separated
from the mother, unless the court finds compelling reasons to order otherwise. Some of
the compelling reasons which would justify an exception to the rule and not awarding
custody to the mother are neglect, abandonment, unemployment and immorality, habitual
drunkenness, drug addiction, maltreatment of the child, insanity or affliction with a
communicable illness.”
In the case of Salientes vs. Abanilla:

In relation to Article 211 of the Family Code, although the couple is separated de
facto, the issue of custody has yet to be adjudicated by the court. In the absence of a
judicial grant of custody to one parent, both parents are still entitled to the custody of
their child.

B.

Depending on the subject matter, then I would say that I, as a lawyer, had provided
legal opinion to my client’s best interest.

The first Canon of the Code of Professional Responsibility provides that “a lawyer
shall uphold the Constitution, obey the laws of the land and promote respect for law and
legal process”. Advising the client to reconcile with his wife first through the marriage
counsel is in consistent with what the Constitution, which is the supreme law of the land,
provides wherein, “the State recognizes the sanctity of family life and shall protect and
strengthen the family as a basic social institution” (Sec. 12, Art II). Marriage is a
relationship of highest importance (Manuel vs. People, GR No. 165842) that is why its
preservation is the utmost interest that Lawyers must consider before proceeding with the
client’s demands in going with through other remedy which is annulment.

Canon 2 of the Professional Responsibility provides that a lawyer shall make his
legal services available in an efficient and convenient manner compatible with the
independence, integrity and effectiveness of the profession.

This canon requires that legal services should not only be efficient but should also
be available and accessible to those who need them, in a manner compatible and in
accordance to the code of professional responsibility. A lawyer who accepts professional
employment should be in a position to render efficient and legal assistance. Otherwise, he
should refer the case to another lawyer who can perform well and carry out the client’s
interest competently and effectively.
 II.

A. Legal Opinion

Elucidated under Article 41 of the Family Code of the Philippines, if a spouse has
been absent for four (4) consecutive years and the spouse present had a well-founded
belief that the absent spouse was already dead, he or she can file a summary proceeding
to have the absent spouse declared presumptively dead, in order to remarry.  The period
of four (4) years is shortened to two (2) years if the absent spouse was on board a vessel
lost during a sea voyage or an airplane which is missing, or a member of the armed forces
taking part in a war or in danger of death under similar circumstances.

The fundamentals of Presumptive Death were unraveled in the case of Republic

vs. Catubag (G.R. No. 210580); here, the Supreme Court explained that for the
Presumptive Death to prosper, the following requisites must be complied with, to wit:

1. The absent spouse has been missing for four consecutive years, or two consecutive
years if the disappearance occurred where there is danger of death under the
circumstances laid down in Article 391 of the Civil Code; 

2. The present spouse wishes to remarry;

3. The present spouse has a well-founded belief that the absentee is dead;

4. The present spouse files for a summary proceeding for the declaration of
presumptive death of the absentee.

The Family Code does not define what is meant by the phrase “well-founded
belief”; nevertheless, it is a well settled principle that a mere absence of the spouse is not
enough. In the case of Republic vs Cantor (G.R. No. 184621), the Supreme Court ruled
that a mere absence of the spouse (even beyond the period required by law), lack of any
news that the absentee spouse is still alive, mere failure to communicate, or general
presumption of absence under the Civil Code would not suffice. The present spouse must
have a well-founded belief that the absent spouse is dead. What the law requires is the
exertion of diligence, active and reasonable efforts to locate the absentee spouse.

In the case of Paul of constantly visiting Isabela, the place where Suzy was
relocated, for 5 years 5 times a year to look for the latter, is a clear manifestation of
Paul’s diligence and reasonable efforts to locate her absent spouse and that based on his
efforts and inquiries, he believes that under the circumstances, Suzy is already dead.

On the other hand, Paul falls short in complying the Four (4) requisites
enumerated therefrom, supra. Evidently, Paul failed to institute a summary proceeding for
the declaration of Suzy’s presumptive death, without prejudice to the effect of
reappearance of the latter. With this, such propose petition of Paul could not be really
given merit.

Further, the occurrence of I, meeting Suzy in Baguio City is also one thing to be
considered of. It is only obvious that Suzy is not dead; regardless of her reasons in doing
so, permitting Paul to marry Lisa in the subsistence of his marriage with Suzy, will
undeniably constitute polygamous marriage; hence, void.

B.

YES. The legal opinion that I have prepared for my client is for his best interest
and it is in accordance with the Code of Professional Responsibility.

A lawyer must always put first the interest of his client than his personal interest
and it is the duty also of the lawyer to respect and protect the interest of his client.

Here, as a lawyer of Paul it is for the best interest of Paul to know that his wife is
still alive because if I will conceal the fact that his wife is still alive and push through
with the filing of the petition for declaration of presumptive death of his wife, such action
will not prosper since Suzy is still alive and at any time she can reappear and secure an
Affidavit of reappearance with the Local Civil Register and as a consequences the first
marriage is deemed subsisting and the second marriage of Paul to Liza is void for being
bigamous pursuant to article 40 of the FC. So the petition for declaration of presumptive
death is useless and it is a waste of time and money. Hence, it is really better as a lawyer
of Paul to will inform him that his wife is still alive and give other advises or solutions to
the problem other than petition for declaration of presumptive death.

Although Paul is interested in filing for the petition for the declaration of
presumptive death of Suzy for him to marry Liza legally, in fact he paid Attorney’s Fees
for the filing of appropriate petition in court. However, as a lawyer, pursuant to the Code
of Professional Responsibility, money is really catching but we should always remember
that practice of law is a profession and not a business for money. We should always put
first the interest of our clients than our personal interest and we should not take advantage
of chances we encounter while doing our duties as lawyers.
 III

A. Legal Opinion

This refers to your request for legal opinion on the matter of filing a case as
regards the rightful custody of your daughter, Jaime.

The following are the facts presented as per discussed:

1. You intend to exercise fully your parental authority in raising your

6-year-old daughter who is currently under the custody of your in-
laws;
2. Your daughter lives a comfortable life with them; and that
3. You are doing everything in order to support her needs.

As far as Philippine law is concerned, parental authority over minor children is

jointly exercised by both parents. Should there be any disagreement, the decision of the
father shall prevail, unless there is a judicial order to the contrary (Article 211, Family
Code of the Philippines [FCP]).

The issue here is clear of whether you have the rightful custody or not. In our
opinion, you have the right to claim custody over your daughter. Let us take into
consideration the provision of the law which provides that “the exercise of parental
authority includes, among others, the right to have custody over the minor children,
the duty to support, educate and instruct them by right precept and good example,
provide for their upbringing in keeping with their means, impose discipline on them
as may be required under the circumstances, as well as to represent them in all
matters affecting their interests.” (Articles 220 (1), (5) and (7), FCP).

In all controversies regarding the custody of minors, the sole and foremost
consideration is the physical, educational, social and moral welfare of the child, taking
into account the respective resources and social and moral situations of the contending
parties. Considering that you are currently working and earning, we believe that you can
raise well your daughter and provide for her basic needs.

As discussed in the case of Gualberto vs Gualberto, GR No. 154994, Art. 17

Joint Parental Authority of the PD No. 603 provides that the father and mother shall
exercise jointly just and reasonable parental authority and responsibility over their
legitimate or adopted children. In case of disagreement, the father’s decision shall prevail
unless there is a judicial order to the contrary.

In case of the absence or death of either parent, the present or surviving parent
shall continue to exercise parental authority over such children, unless in case of the
surviving parent’s remarriage, the court, for justifiable reasons, appoints another person
as guardian.

A verified petition for the rightful custody of a minor may be filed by any person
claiming such right. Thus, you can ably do so if you intend to exercise sole custody of
Jaime. We reiterate that the parents of the minor child shall have the right to custody over
their children. The right of custody accorded to parent springs from the exercise of
parental authority.

Further, under the Family Code, the father and the mother shall jointly exercise
parental authority over the persons of their common children.

Hence, since your wife died, as the child’s biological father, you have every right
and can claim shall continue exercising sole parental authority over your child, Jaime.
Your daughter, certainly, always needs your physical presence in order for her to feel the
love and care from his father

One thing: considering all these provisions we can honestly opine that you have
better rights as to legal custody than your in-laws. Our opinion is based on the laws and
the jurisprudence applicable to your situation. If by any circumstance you take your
plight to court, we are confident that the case will be decided in your favor.

B.

We weighed the situation and the facts presented and our stand as lawyers is to
opine that the father, Jaewon, deserves to claim the sole custody of his 6-year-old
daughter without jeopardizing the best interest of the child because it is a primary
consideration

The well-being of the child is of paramount importance. According to Article 213

of the Family Code, the paramount criterion when it comes to child custody is the
welfare of the child. This means the court will take into careful consideration the
capabilities of both mother and father to raise the child, including their moral, social, and
economic situation.

As stated in Article 213 of the Family Code, “Every child has rights which are
not and should not be dependent solely on the wishes, much less the whims and caprices,
of his parents. His welfare should not be subject to the parents’ say-so or mutual
agreement alone.”

Parental authority is inalienable. Unless it is expressly authorized by the law,

parents cannot simply give up and/or transfer their parental authority and responsibilities.
The only exception to this is in cases the child being surrendered to a home or an
orphanage, as well as guardianship and adoption.

When a parent entrusts his minor child’s custody and care to a relative or a friend,
this only entails temporary custody.

The Convention on the Rights of the Child provides that "[i]n all actions
concerning children, whether undertaken by public or private social welfare institutions,
courts of law, administrative authorities or legislative bodies, the best interests of the
child shall be a primary consideration."

The principle of "best interest of the child" pervades Philippine cases involving
adoption, guardianship, support, personal status, minors in conflict with the law, and
child custody. In these cases, it has long been recognized that in choosing the parent to
whom custody is given, the welfare of the minors should always be the paramount
consideration. Courts are mandated to take into account all relevant circumstances that
would have a bearing on the children’s well-being and development. Aside from the
material resources and the moral and social situations of each parent, other factors may
also be considered to ascertain which one has the capability to attend to the physical,
educational, social and moral welfare of the children. Among these factors are the
previous care and devotion shown by each of the parents; their religious background,
moral uprightness, home environment and time availability; as well as the children’s
emotional and educational needs

A.M. No. 03-04-04-SC, which took effect on 15 May 2003, provides for the
Rules on Custody of Minors.

Section 14. Factors to consider in determining custody. - In awarding custody, the

court shall consider the best interests of the minor and shall give paramount consideration
to his material and moral welfare. The best interests of the minor refer to the totality of
the circumstances and conditions as are most congenial to the survival, protection, and
feelings of security of the minor encouraging to his physical, psychological and
emotional development. It also means the least detrimental available alternative for
safeguarding the growth and development of the minor.

The court shall also consider the following:

(a) Any extrajudicial agreement which the parties may have bound themselves to
comply with respecting the rights of the minor to maintain direct contact with the non-
custodial parent on a regular basis, except when there is an existing threat or danger of
physical, mental, sexual or emotional violence which endangers the safety and best
interests of the minor;

(b) The desire and ability of one parent to foster an open and loving relationship
between the minor and the other parent;

(c) The health, safety and welfare of the minor;

(h) The most suitable physical, emotional, spiritual, psychological and educational
environment for the holistic development and growth of the minor

We believe all of these are weighed in favor of the child and Jaewon as the father
who deserves to live with his daughter. And in our opinion, there is no violation in the
Code of Professional Responsibility because we cited relevant provisions and we
honestly adhered to the provisions of Rule 15.05 which provides that “when advising
his client, he shall give a candid and honest opinion on the merits and probable
results of the client’s cause.”