This article first appeared in the September 2013 issue of Smart Parenting magazine
1. What’s the difference between legal separation and an annulment? In a legal separation, you and your husband are still legally married. Therefore, you cannot remarry, but you are allowed to live separately. According to the Family Code, the grounds for filing for legal separation are sexual infidelity, abandonment, physical abuse, drug addiction or habitual alcoholism, and homosexuality, among others. This setup allows you and your spouse the chance to reconcile, should you find yourselves in better terms eventually.
In an annulment, the marriage is considered valid only up to the time it is annulled. The Philippine law favors the validity of marriage, so an annulment is granted only if you can prove that you or your spouse is psychologically incapacitated to fulfill the essential obligations of marriage.
You can also file for a declaration of nullity of marriage, where your marriage is deemed invalid from the start. Some grounds for this include marrying as a minor, the absence of a valid marriage license, and if the wedding was officiated by an unauthorized person.
2. What will happen to our properties or our savings? Everything you and your spouse owned or acquired before and after the marriage is considered conjugal property, unless you have a pre-nuptial agreement that states otherwise.
In a legal separation or an annulment, the court will determine the liquidation, partition, and distribution of what’s left of your common property, after settling all payments or debts, among you, your spouse, and the kids. The court will consider factors, such as who has custody of the children and the amount of [financial] support needed, before arriving at the proper distribution of assets.
3. Can I ask for child support from my ex? If yes, how much? You have every right to ask your child’s father to share the financial responsibility of raising your child, whether legitimate or illegitimate. This applies to children born outside of marriage (the parents are not married or the marriage is declared void from the beginning by the court) and children of legally separated or annulled couples. Failure to give child support is considered a criminal offense under the Anti-Violence Against Women and Their Children Act. If the father isn’t recognized, then you have to prove paternity through a legally-sanctioned test.
The amount of child support is determined by both the needs of your child and the financial capacity of the father. This may change over time depending on these two factors. You both share this responsibility, so you have to be reasonable and transparent with the father of your child. Break down your child’s monthly expenses into “everything indispensable for sustenance, such as: dwelling, clothing, medical attendance, education, and transportation,” as stated in the Family Code.
4. How about financial support for the spouse? If you and your husband are “separated in fact” -— meaning you no longer live together but without the court’s recognition —- your assets are not affected because the marriage is technically still intact. Both parents are still obliged to support the family, and this includes his or her spouse and the children.
In a legal separation, the spouse who acted in bad faith is not entitled to spousal support. The abandoned spouse can file a petition in court to receive spousal and child support from their assets, ask to be named in charge of them, and/or to distribute them.
On the other hand, once an annulment of marriage is final, you are no longer entitled to receive spousal support —- just child support if the kids are in your custody.
5. Is there a recommended visitation schedule? The father of your child is entitled to visitation rights, unless you can prove to the court that his visits will be detrimental to the child (in which case you can file a Permanent Protection Order in court to deter him from getting anywhere near you or your child). There are no clear-cut rules for visitation schedules. The best you can do is to discuss it with the father of your child and agree on a schedule that would be best for your child. You may also ask your child to join the discussion if he’s old enough to understand the situation.
6. What surname should my child use? If you are single: Any child born out of wedlock is considered an illegitimate child and takes his mother’s surname. Your child can use his father’s surname only if these two conditions are met: (1) the father recognizes that the child is his on the birth certificate or on any public or private handwritten document, and (2) you, the mother, agree to let your child use his father’s surname.
If the parents wish to change an illegitimate child’s surname but the birth certificate has already been registered, you need to file a petition in court for a change of name. If you want your child to use his father’s surname, the father should write an Affidavit of Acknowledgment or Admission of Paternity, and you should accomplish an Affidavit of Consent. Then, file an Affidavit to Use the Surname of the Father with the Local Civil Registrar where the birth certificate of the child was registered.
If you are separated or annulled: Children born prior to the legal separation or annulment are still considered legitimate and should continue to use their father’s surname. In a legal separation, you, the mother, must also still use your husband’s surname. However, after an annulment, you have the option to revert to your maiden name or still use your husband’s surname.
If a marriage is not valid from the very beginning, you have to revert automatically to your maiden name. Your children will be considered illegitimate and will take on your surname, unless the father recognizes paternity and both of you agree to let the kids use their father’s surname.
7. What if I decide to get married? If you are single: Your husband should first adopt your child from your previous relationship before your child can use his surname. You would need the consent of your child’s biological father to go through this if he’s recognized through the birth certificate and/or if your child uses his surname.
If you are annulled: If you decide to remarry, your new husband can adopt your child from your previous marriage and let your child use his surname but only if the biological father gives his consent. It is required by law, unless you can prove that you’ve exhausted all means to locate or contact him but without success.
8. Does my ex-partner have a say on the decisions I make for my child? If you are single: Illegitimate children -— those born to parents who aren’t married -— are automatically under the sole custody and parental authority of the mother, whether the father expresses paternity and consents to the child’s use of his surname. The father, though, is entitled to visitation rights inasmuch as your child can demand child support from his father.
If you are separated or annulled: Custody of a child below seven years old is given to the mother, unless she is proven unfit to be a parent. Parental authority can still be shared by both parents, unless the court deems otherwise. Remember that the court will always put the child’s best interest on top of everything else.
You cannot just appoint someone else to be your child’s guardian. Such an appointment won’t have any basis unless your spouse consents to it. You have to file a petition in court for guardianship.
9. Who will get custody of the child if something happens to the parent? If you are single: A surviving grandparent or sibling will get custody of the child. The biological father can also claim custody of and sole parental authority over the child by first establishing paternity and then filing a petition in court.
If you are separated or annulled: The other surviving parent automatically takes over custody and sole parental authority of the child, unless he or she is proven unfit to care for the child. If the other parent is proven unfit or unavailable, a surviving grandparent or next of kin over 21 years old can get custody and sole parental authority of the child.
Did you know? 1. Being separated for years is not enough basis for an annulment to be granted. You still have to make your case based on the grounds listed in the Family Code. If anything, it could only be considered as proof that there is absolutely no chance of reconciliation between you and your husband.
2. Visitation schedules, child support payment, and property distribution can be settled privately. When you and your ex partner have come to an agreement, remember to put it in writing and then have it approved or recognized by the court, so you can ask the court’s intervention when your ex fails to fulfill his part of the agreement. Having trouble agreeing? Ask the court to intervene or refer you to a mediator.
3. When applying for a new passport, it is not mandatory for the wife to use her husband’s surname -- unless you already have an existing passport where you used your husband’s surname. If this is the case, you cannot revert to using your maiden name in your new passport unless you are divorced, your marriage is annulled, or your husband is deceased.
Single and Special Here's your 411 on the Solo Parents’ Welfare Act of 2000
1. Who is considered a solo parent? Any parent who supports and cares for a child on his or her own. This includes unmarried women who got pregnant and decided to raise the child alone, a legally-separated person or someone who has had an annulment who has custody of the child, or anyone who assumed the responsibility of caring for a child because of the death, disappearance, or prolonged absence of the child’s parent/s for at least one year or longer.
2. What can it offer solo parents? You can avail of employment-related benefits such as flexible work hours, solo-parent leave (seven days) after rendering a year of employment, and protection from work discrimination. A solo parent can also get medical assistance and educational or housing benefits from the respective government offices to help her provide and care for her child.
3. How can a solo parent avail of these benefits? First, get a Solo Parent ID. Follow these steps:
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a. Submit a residence certificate from your barangay captain, documents that prove you are a single parent (death certificate of spouse; declaration of nullity of marriage; certificate of no marriage; medical certificate if spouse is incapacitated), and an ITR certification from your barangay municipal treasurer that indicates your income bracket, to your City/Municipal Social Welfare and Development Office (C/MS WDO ).
b. After assessment and sometimes an interview by a social worker, you will be issued a temporary card (you can get your official ID after 30 days) so you can already avail of benefits under The Solo Parent Act.
This article is based on the Family Code of the Philippines, the Solo Parents’ Welfare Act, and interviews with lawyers Raul G. Gerodias, Maria Leobeth B. Deslate-Delicana, Jose Antonio Aliling of Gerodias, Suchianco and Estrella Law Firm, Germaine Trittle Leonin, planning officer from the Planning and Development Bureau of the Department of Social Welfare and Development, Gian Navarro of Reyes Cabrera Rojas & Associates, and Nikki Jimeno of Jimeno Cope and David Law Offices.