Article 68, Title III, Family Code of the Philippines:

The husband and wife are obliged to live together, observe mutual love, respect and fidelity, and render mutual help and support

Submitted by

PSI MAGILAS S SALVACION PSOAC 2011-117

Submitted to

ATTY EMELY R TINIDAD

DATE

October 17, 2011

References: A. Family Code of the Philippines, Executive Order no. 209, July 6, 1987 B. http://legal-dictionary.thefreedictionary.com C. www.lectlaw.com D. Cases downloaded from www.lawphil.net 1. POTENCIANO ILUSORIO, MA. ERLINDA I. BILDNER, and SYLVIA ILUSORIO, petitioners, vs. COURT OF APPEALS and ERLINDA K. ILUSORIO, respondents (G.R. No. 139808. May 12, 2000) 2. ERLINDA K. ILUSORIO, petitioner, vs. ERLINDA I. BILDNER and SYLVIA K. ILUSORIO, JOHN DOE and JANE DOE, respondents (G.R. No. 139789. May 12, 2000) 3. POTENCIANO ILUSORIO, MA. ERLINDA I. BILDNER and SYLVIA K. ILUSORIO, petitioners, vs. HON. COURT OF APPEALS and ERLINDA K. ILUSORIO, respondents (G.R. No. 139808 July 19, 2001) 4. IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF POTENCIANO ILUSORIO, ERLINDA K. ILUSORIO, petitioner, vs. ERLINDA K. ILUSORIO-BILDNER, SYLVIA K. ILUSORIO-YAP, JOHN DOES and JANE DOES, respondents(G.R. No. 139789 July 19, 2001) 5. CHI MING TSOI, petitioner, vs. COURT OF APPEALS and GINA LAOTSOI, respondents (G.R. No. 119190 January 16, 1997)

Article 68, Title 3, Family Code of the Philippines, Executive Order no. 209, July 6, 1987: Can a Wife or a Husband Legally Compel His or Her Spouse to Come Home and Comply with the Obligation of Living Together and Observing Mutual Love, Respect and Fidelity?

Introduction Under Article 1 of the Philippines Family Code, Marriage is a special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life. It is the foundation of the family and an inviolable social institution whose nature, consequences, and incidents are governed by law and not subject to stipulation, except that marriage settlements may fix the property relations during the marriage within the limits provided by this Code. (ref A) Based on Common Law legal terms, Consortium is defined as the marital alliance between a Husband and Wife and their respective right to each other's support, cooperation, aid, and companionship. It is the marital relationship, particularly sexual intimacies, between husband and wife. Consortium arises in a lawsuit as a claim of "loss of consortium." Often it means that due to one spouse's injuries or emotional

distress he/she cannot have sexual relations for a period of time or permanently, which is a loss to the mate for which he/she should be awarded damages. Meanwhile, Coverture is defined as the protection and control of a woman by her husband that gave rise to various rights and obligations. Upon marriage, a Husband and Wife were said to have acquired unity of person that resulted in the husband having numerous rights over the property of his wife and in the wife being deprived of her power to enter into contracts or to bring lawsuits as an independent person (ref B). Under Philippine Law The basis for marital relationship, especially the rights and obligations of husband and wife can be found in Title 3 of the Family Code of the Philippines, Executive Order no. 209 which was signed into law on July 6, 1987, with the following provisions (ref A): TITLE III RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE Art. 68. The husband and wife are obliged to live together, observe mutual love, respect and fidelity, and render mutual help and support. (109a) Art. 69. The husband and wife shall fix the family domicile. In case of disagreement, the court shall decide. The court may exempt one spouse from living with the other if the latter should live abroad or there are other valid and compelling reasons for the exemption. However, such exemption shall not apply if the same is not compatible with the solidarity of the family. (110a) Art. 70. The spouses are jointly responsible for the support of the family. The expenses for such support and other conjugal obligations shall be paid from the community property and, in the absence thereof, from the income or fruits of their separate properties. In case of insufficiency or absence of said income or fruits, such obligations shall be satisfied from the separate properties. (111a) Art. 71. The management of the household shall be the right and the duty of both spouses. The expenses for such management shall be paid in accordance with the provisions of Article 70. (115a) Art. 72. When one of the spouses neglects his or her duties to the conjugal union or commits acts which tend to bring danger, dishonor or injury to the other or to the family, the aggrieved party may apply to the court for relief. (116a) Art. 73. Either spouse may exercise any legitimate profession, occupation, business or activity without the consent of the other. The latter may object only on valid, serious, and moral grounds. In case of disagreement, the court shall decide whether or not: (1) The objection is proper; and (2) Benefit has occurred to the family prior to the objection or thereafter. If the benefit accrued prior to the objection, the resulting obligation shall be

enforced against the separate property of the spouse who has not obtained consent. The foregoing provisions shall not prejudice the rights of creditors who acted in good faith. (117a) Answer to the Question According on the Supreme Court decision on above ref D(1), D(2), D(3) and D(4), the answer is no. A wife or a husband cannot legally compel their spouse to come home and comply with the obligation of living together and observing mutual love, respect and fidelity. Facts of the Case Erlinda Kalaw (wife) and Potenciano Ilusorio (husband) were married on 1942, and lived together for thirty years. For many years, lawyer Potenciano Ilusorio was the Chairman of the Board and President of Baguio Country Club, hence, became very wealthy. The marriage bore six children. In 1972, they separated from board and bed because of an undisclosed reason. However, in 1997, after Potenciano arrived from United States, he stayed with Erlinda at her house in Antipolo for five months. In that period, husbands health deteriorated. Sylvia and Erlinda Ilusorio-Bildner, two of the daughters of the couple, suspected that the wife was overdosing the prescribed antidepressant medication of Potenciano. On February 1998, the wife filed a petition for guardianship over person and property over the husband at the Regional Trial Court, Antipolo City on the basis of Potencianos advanced age, frail health, poor eyesight and impaired judgment. On May 1998, Potenciano did not come home and lived in Makati. On March 1999, Kalaw filed a petition for habeas corpus with the Court of Appeals to have the custody of her husband in consortium and alleged that Potenciano, Sylvia and Bilden refused Kalaws demands to see and visit her husband and prohibited Potenciano from coming home to her house. On April 1999, the Court of Appeals (CA) denied petition for habeas corpus because of lack of unlawful restraint or detention, but CA gave visitation rights for Kalaw. On October 1999, Kalaw filed with the Supreme Court an appeal via certiorari pursuing her desire to have custody of her husband. Meanwhile, Potentiano, Sylvia and Bilden appealed with the Supreme Court on the visitation rights and its accompanying contempt of court punishment if violated. On May 2000, the Supreme Court dismissed the petition for habeas corpus for lack of merit, and granted the petition to nullify the Court of Appeals' ruling giving visitation rights to the wife. On September 2000, Kalaw filed a motion for reconsideration.

Issue

Whether or not Kalaw can secure a writ of Habeas Corpus to compel her husband to live with her in consortium and coverture. Ruling Habeas Corpus is Latin for "you have the body". Historically, prisoners often seek release by filing a petition for a writ of habeas corpus with the court to issue a judicial mandate to a prison official ordering that an inmate be brought to the court so it can be determined whether or not that person is imprisoned lawfully and whether or not he should be released from custody. It was first used by the common-law courts in thirteenth- and fourteenth-century England. These courts, composed of legal professionals, were in competition with feudal courts, which were controlled by local landowners, or "lords." The feudal courts lacked procedural consistency, and on that basis, the common-law courts began to issue writs demanding the release of persons imprisoned by them (ref B). The petition must show that the court ordering the detention or imprisonment made a legal or factual error. In family law, a parent who has been denied custody of his child by a trial court may file a habeas corpus petition. Also, a party may file a habeas corpus petition if a judge declares her in contempt of court and jails or threatens to jail her (ref C). It extends to all cases of illegal confinement or detention or by which the rightful custody of a person is withheld from the one entitled thereto (ref D3). To justify the grant of the petition, the restraint of liberty must be an illegal and involuntary deprivation of freedom of action. The illegal restraint of liberty must be actual and effective, not merely nominal or moral (ref D4). In this case, evidence shows that there was no actual and effective detention or deprivation as evidence by the lack of request from Potenciano to the building administrator to where he was staying which is proof that he did not object to his wife and other children from visiting him nor he was not prevented from leaving his house or seeing people. Furthermore, contrary to the claim of the Kalaw that her husband is old, weak of health and mentally impaired, the court observed that Potenciano can answer questions in satisfaction of the court. The court ruled that soundness of mind does not hinge on the fact that Potenciano is 86 years old (age) or under medication (medical condition) but on the capacity of the individual to discern his actions. Being of sound mind, he possesses the capacity to make crucial choices regarding his residence and the people he wants to see or live with. The choices he made may not appeal to some of his family members but these are choices that he alone has the right to make. Hence, the Supreme Court nullified the CAs ruling on visitation rights given to Kalaw because there was an absence of any actual and effective restraint on the husbands liberty. Furthermore, it may be viewed as deprivation of his right to privacy. The Court of Appeals missed the fact that the case did not involve the right of a parent to visit a minor child but the right of a wife to visit a husband. In case the husband refuses to see his wife for private reasons, he is at liberty to do so without threat of any penalty attached to the exercise of his right. No court is empowered as a judicial authority to compel a husband to live with his wife. Coverture cannot be enforced by compulsion of a writ of habeas corpus carried out by sheriffs or by any other intermediate process. That is a matter beyond judicial authority and is best left to the man and womans free choice. Personal View As stated in article 68 of the Family code: The husband and wife are obliged to live together, observe mutual love, respect and fidelity, and render mutual help and support. The word mutual refers to anything in which both parties have reciprocal rights, understanding, or agreement (ref B). Hence, mutual love help and support means understanding and respecting another persons wishes and choices, even though this is contrary to your own.