Yes. The law that governs commercial activities of foreign entities in the Philippines in Republic Act (R.A.) No. 7042, also known as the Foreign Investments Act of 1991 (FIA). Before a foreign entity may do business in the Philippines, the FIA requires such entity to obtain a license from the Securities and Exchange Commission (SEC).
Under the FIA, a foreign entity that does business in the Philippines without a license cannot commence an action in Philippine courts to enforce its rights. However, such foreign entity may be the subject of an action before Philippine courts. Consequently, the foreign entity may be subjected to pay a penalty for doing business without a license in the Philippines. In that case, such penalty may be imposed on the directors and officers of the foreign entity who are responsible for the violation.
According to the FIA, “doing business” includes the solicitation of orders and service contracts; opening of offices, whether liaison offices or branches; appointing representatives or distributors domiciled in the Philippines or who, in any calendar year, stay in the Philippines for a period or periods totaling 180 days or more; participation in the management, supervision or control of any domestic business, firm, entity or corporation in the Philippines; and any other act that imply a continuity of commercial dealings or arrangements and contemplate, to that extent, the performance of acts or works, or the exercise of some of the functions normally incident to, and in progressive prosecution of, commercial gain or of the purpose and object of the business organization. (Section 3(d), R.A. No. 7042)
Yes. Although foreigners may hold interests in domestic corporations and other entities, there are certain commercial activities which the Constitution or other special laws reserve to entities which are wholly owned by Philippine citizens, such as land ownership and mass media, among others.
There are also some commercial activities where Philippine law allows foreign ownership, but only to a limited extent. For instance, foreign equity in private recruitment agencies, whether for local or overseas employment, is limited to 25% and 30% for advertising firms.
There are different corporate vehicles that a foreign corporation or entity may use to secure a license to do business in the Philippines. These are a branch office, a representative office, a domestic corporation or subsidiary, a regional or area headquarters, and a regional operating headquarters.
A representative office, also called a liaison office, deals directly with the Philippine clients of the foreign head office, and undertakes certain activities in the Philippines, such as information dissemination, promotion of the products, and quality control. A representative office may not derive income in the Philippines and is fully subsidized by the head office. (Section 1 (c), Implementing Rules and Regulations of R.A. No. 7042)
A representative office is an extension of the head office, and has no distinct personality from the head office.
The registration of a representative office must be accompanied by an initial inward remittance of at least USD 30,000.00.
Unlike a representative office, a branch office carries out the commercial activities of its foreign head office, and may derive income from the Philippines. (Section 1 (c), Implementing Rules and Regulations of R.A. No. 7042)
However, a branch office is not considered a separate entity, and is also considered an extension of the head office. Accordingly, if the activity that the foreign corporation or head office wishes to engage in is subject to foreign equity limitations, it will need to incorporate a domestic corporation as a subsidiary.
A regional or area headquarters acts as an administrative branch of a multinational company engaged in international trade. A multinational company is a foreign company or a group of foreign companies with business establishments in two or more countries. (Sections 2 (1) and 2 (2), R. A. No. 8756)
The purpose of a regional or area headquarters is to serve as a supervision, communications and coordination center for its subsidiaries, affiliates or branches within the Asia-Pacific Region and other foreign markets. It does not derive income in the Philippines. To finance its activities, the head office is required to remit at least USD 50,000.00 prior to registration, and thereafter at least USD 50,000.00 annually.
A regional operating headquarters is a special type of vehicle that is allowed to derive income in the Philippines by performing qualifying services its affiliates, subsidiaries or branches in the Philippines, the Asia-Pacific Region and in other foreign markets. (Section 2 (3), R. A. No. 8756)
The services that a regional operating headquarters may provide are general administration and planning, business planning and coordination, sourcing or procurement of raw materials and components, corporate finance advisory services, marketing control and sales promotion, training and personnel management, logistics services, research and development services and product development, technical support and maintenance, data processing and communication, and business development. (Section 4, R. A. No. 8756)
The registration of a regional operating headquarters must be accompanied by an initial inward remittance of at least USD 200,000.00.
Yes. Commercial activities of foreign entities in the Philippines are governed by Republic Act (“R.A.”) No. 7042, otherwise known as the Foreign Investments Act of 1991 (“FIA”). Before a foreign entity may do business in the Philippines, the FIA requires the foreign entity to obtain a license from the Securities and Exchange Commission (“SEC”).
A sole proprietorship is a business owned and operated by a natural person. Because it has no personality distinct from its owner, the liability of the sole proprietorship is virtually unlimited, and the creditors of the business usually have a recourse to the assets of the owner.
A partnership is created by contract, whereby two or more persons bind themselves to contribute money, property or industry to a common fund, with the intention of dividing the profits among themselves. A partnership has a juridical personality that is separate and distinct from that of each of the partners. (Articles 1767 and 1768, Civil Code)
Generally, however, all partners are personally liable pro rata for partnership liabilities after all partnership assets have been exhausted.
A natural person who is at least 18 years of age may register a business name with the Department of Trade & Industry.
Natural persons wishing to form a partnership may register with the Securities and Exchange Commission by filing, among others, their articles of partnership.
Any person, partnership (subject to certain exceptions), association or corporation, singly or jointly with others, but not more than fifteen (15) in number, may organize a corporation. (Section 10, Revised Corporation Code)
A corporation with a single stockholder is considered a One Person Corporation or OPC. (Section 10, Revised Corporation Code)
Stock corporations and OPCs are not required to have a minimum capital stock, except as otherwise provided by special law. (Sections 12 and 117, Revised Corporation Code)
The primary difference between a sole proprietorship and an OPC is that the latter has its own personality, and its assets and liabilities do not form part of the assets and liabilities of its lone stockholder.
Each business or commercial activity has a unique set of risks. For this reason, we offer legal advice, identifying significant risks and providing solid judgment. We have therefore created a new model designed for entrepreneurs and startups as an alternative to bigger law firms.
To obtain a marriage license, the following documents are required: (a) one original and two photocopies of the parties’ PSA birth certificates; (b) written parental consent, if one or both of the parties are between 18 and 21 years old; (c) written parental advice, if one or both of the parties are between 21 and 25 years old; (d) a certificate of attendance indicating that the parties attended seminars on pre-marital counseling and family planning conducted by the municipal or city government with which they will apply for a marriage license; (e) a barangay clearance or certification stating the residence address of the parties; and (f) at least two valid IDs.
A marriage license is valid for 120 days from the date it was issued.
The following are considered illegitimate children: (a) children born to couples who are not legally married or of common- law marriages; (b) children born of incestuous marriages; (c) children born of bigamous marriages; (d) children born of adulterous relations between parties; (e) children born of marriages void for reason of public policy under Article 38 of the Family Code; (f) children born of couples below 18, whether they are married or not; and (g) children born of other void marriages under Article 35 of the Family Code, except where the marriage is void for lack of authority of the solemnizing officer but the parties believed in good faith that he had such authority.
Paternity and filiation refer to the relationship existing between parent and child. Filiation may be by nature or adoption.
Filiation of legitimate (or illegitimate) children is established by any of the following: (a) the record of birth appearing in the civil registry or a final judgment; or (b) an admission of legitimate (or illegitimate) filiation in a public document or a private handwritten instrument signed by the parent. In the absence of the foregoing, legitimate or illegitimate filiation may be proved by: (a) open and continuous possession of the status of a legitimate or illegitimate child; or (b) any other means allowed by the Rules of Court and special laws. (Aguilar v. Siasat, G.R. No. 200169, 28 January 2015)
Yes. Like legitimate children, illegitimate children are entitled to support. (Article 195 (4), Family Code)
Legitimation is a remedy by which those who in fact were not born in wedlock and should, therefore, be considered illegitimate, are, by fiction, considered legitimate, it being supposed that they were born when their parents were already validly married. It shall take place only by a subsequent valid marriage between the biological parents. (Article 177, Family Code)
The legitimated child shall enjoy the same rights as a legitimate. Furthermore, legitimation retroacts to the time of the child’s birth. (Articles 179 and 180, Family Code)
Support comprises everything indispensable for sustenance, dwelling, clothing, medical attendance, education and
transportation, in keeping with the financial capacity of the family. (Article 194, Family Code)
The following persons are obliged to support each other: (a) spouses; (b) legitimate ascendants and descendants; (c) parents and their legitimate children and the legitimate and illegitimate children of the latter; (c) parents and their illegitimate children and the legitimate and illegitimate children of the latter; and (d) legitimate brothers and sisters, whether full or half-blood. (Article 195, Family Code)
The obligation to give support is demandable from the time the person who has a right to receive the same needs it for maintenance, but it shall not be paid except on the date of judicial or extra-judicial demand. (Baltazar v. Serfino, G.R. No. L-17315, 331 July 1965)
A property regime is a set of rules agreed upon by the parties to a marriage which governs their property relations during the course of their marital life. (Article 75, Family Code)
Philippine law recognizes three property regimes: (a) the Absolute Community of Property regime; (b) the Conjugal Partnership of Gains regime; and (c) the Complete Separation of Properties regime. (Article 75, Family Code)
In the Absolute Community of Property, the spouses are deemed co-owners of all properties they both owned separately at the time of the celebration of the marriage, and those properties acquired thereafter. (Article 90, Family Code)
In the Conjugal Partnership of Gains, the spouses retain ownership over their respective properties. However, they place in a common fund the proceeds, products, fruits and income from their separate properties and those acquired by either or both spouses through their efforts or by chance. Upon dissolution of the marriage or of the partnership, the net gains or benefits obtained by either or both spouses shall be divided equally between them, unless otherwise agreed in the marriage settlements. (Article 106, Family Code)
In the Complete Separation of Properties regime, each spouse shall own, dispose of, possess, administer and enjoy his or her own separate estate, without need of the consent of the other. To each spouse shall belong all earnings from his or her profession, business or industry, and all fruits, natural, industrial or civil, due or received during the marriage from his or her separate property. (Article 145, Family Code)
This regime may refer to present or future property, or both. It may be total or partial. In the latter case, the property not agreed upon as separate shall pertain to the absolute community. (Article 144, Family Code)
Which regime governs the property relations of a husband and wife if no marriage settlement or pre-nuptial agreement was executed?
In the absence of a marriage settlement, the system of absolute community of property shall govern. (Article 75, Family Code)
When parties who are capacitated to contract marriage live together as husband and wife without the benefit of marriage or under a valid marriage, they are deemed co-owners in equal share of their wages, salaries and properties. (Article 147, Family Code).
My husband and I did not execute a pre-nuptial agreement. Can we modify our property relations during our marriage?
No. In order for a modification in the marriage settlement to be valid, it must be made before the celebration of the marriage. (Article 76, Family Code)
However, the spouses may jointly file a verified petition with the court for the voluntary dissolution of the absolute community or the conjugal partnership of gain, and for the separation of their common properties during their marriage. (Article 136, Family Code)
I only recently learned that my marriage to my husband is void, and that he knew all along that our marriage was void. What will happen to our properties?
The share of the party who is in bad faith shall be forfeited in favor of the common children. However, if the union produced no children, or if the common children or their descendants waive their right to their respective shares, the properties shall belong to you. (Article 147, Family Code)
What is the difference between Annulment, Declaration of Nullity of Marriage, Divorce and Legal Separation?
A petition for annulment has for its objective the severance of marital relations between husband and wife. A petition for annulment of marriage is filed when the marriage is considered voidable, or if the marriage is valid but is susceptible of being voided pursuant to the grounds provided by law.
In a petition for declaration of nullity of marriage, the marriage is sought to be declared void ab initio, or void from the beginning.
In a divorce, the existence and validity of a marriage is recognized, but the parties seek the termination of the marital union.
A petition for legal separation seeks only to declare the bed and board separation of husband and wife, without affecting the validity and existence of their marital union.
Are Annulment, Declaration of Nullity of Marriage, Divorce and Legal Separation allowed in the Philippines?
No. The Family Code allows only annulment, declaration of nullity of marriage and legal separation. Divorce is not allowed under Philippine law.
Under Article 45 of the Family Code, a marriage may be annulled for any of the following causes, existing at the time of the marriage:
(a) when one of the parties to the marriage was 18 years of age or over but below 21, and the marriage was solemnized without the consent of the parents, guardian or person having substitute parental authority over such party, in that order, unless after attaining the age of 21, such party freely cohabited with the other and both lived together as husband and wife;
(b) when either party was of unsound mind, unless such party after coming to reason, freely cohabited with the other as husband and wife;
(c) when 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;
(d) when 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;
(e) when either party was physically incapable of consummating the marriage with the other, and such incapacity continues and appears to be incurable; or
(f) when either party was afflicted with a sexually-transmissible disease found to be serious band appears to be incurable.
Yes. Article 46 of the Family Code enumerates the cases which constitute fraud under Article 45. These are:
(a) non-disclosure of a previous conviction by final judgment of the other party of a crime involving moral turpitude;
(b) concealment by the wife of the fact that at the time of the marriage, she was pregnant by a man other than her husband;
(c) concealment of a sexually transmissible disease, regardless of its nature, existing at the time of the marriage; or
(d) concealment of drug addiction, habitual alcoholism or homosexuality or lesbianism existing at the time of the marriage.
Note that Article 46 also states that no other misrepresentation or deceit as to character, health, rank, fortune or chastity shall constitute such fraud as will give grounds for action for the annulment of a marriage.
Are Annulment, Declaration of Nullity of Marriage, Divorce and Legal Separation allowed in the Philippines?
No. The Family Code allows only annulment, declaration of nullity of marriage and legal separation. Divorce is not allowed under Philippine law.
Declaration of Nullity of Marriage
A petition for nullity of marriage may be filed on the following grounds:
(a) Absence of any of the essential or formal requisites of marriage (Article 4, Family Code);
(b) The grounds enumerated in Article 35 of the Family Code;
(c) Psychological incapacity under Article 36 of the Family Code;
(d) Incestuous marriages (Article 36, Family Code);
(e) Marriages that are contrary to law or public policy (Article 38, Family Code);
(f) Void subsequent marriages (Articles 40, 41, 44 and 53, Family Code).
Psychological incapacity refers to mental (not physical) incapacity that causes a party to be truly cognitive of the basic marital covenants that must be assumed and discharged by the parties to the marriage, including their mutual obligations to live together, observe love, respect and fidelity, and render help and support. (Santos v. Court of Appeals, et. al., G.R. No. 112019, 4 January 1995)
Psychological incapacity must be confined to the most serious of cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage. The psychologic condition must exist at the time the marriage is celebrated. (Dimayuga-Larena v. Court of Appeals, G.R. No. 159220, 22 September 2008)
Is the professional opinion of a psychologist sufficient to establish the existence of psychological incapacity?
No. Psychological incapacity must be established by the totality of the evidence presented during the trial. (Marcos v.
Marcos, G.R. No. 136490, 19 October 2000)
The presentation of expert proof in cases for declaration of nullity of marriage based on psychological incapacity presupposes a thorough and an in-depth assessment of the parties by the psychologist or expert, for a conclusive diagnosis of a grave, severe and incurable presence of psychological incapacity. It is indispensable that the evidence must show a link, medical or the like, between the acts that manifest psychological incapacity and the psychological disorder itself. (Suazo v. Suazo, G.R. No. 164493, 12 March 2010)
Either party, even the psychologically incapacitated, can file the action. (Te v. Yu-Te, G.R. No. 161793, 13 February 2009)
What will happen to the children if the petition for nullity of marriage is granted on the ground of psychological incapacity?
The children remain legitimate. Children of marriages void under Article 36 (psychological incapacity) and under Article 53 (second marriage without delivery of legitime) are considered legitimate, as an exception to the general rule.
A petition for legal separation may be filed on any of the following grounds:
(a) repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner;
(b) physical violence or moral pressure to compel the petitioner to change religious or political affiliation;
(c) an attempt by the respondent to corrupt or induce the petitioner, a common child, or a child of the petitioner, to engage in prostitution, or connivance in such corruption or inducement;
(d) a final judgment sentencing the respondent to imprisonment or more than six years, even if pardoned;
(e) drug addiction or habitual alcoholism of the respondent;
(f) lesbianism or homosexuality of the respondent;
(g) contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or abroad;
(h) sexual infidelity or perversion;
(i) attempt by the respondent against the life of the petitioner; or
(j) abandonment of the petitioner by the respondent without justifiable cause for more than one year.
For purposes of the foregoing, the term “child” shall include a child by nature or by adoption. (Article 55, Family Code)
A decree of legal separation shall have the following effects:
(a) the spouses shall be entitled to live separately from each other, but the marriage bonds shall not be severed;
(b) the absolute community or the conjugal partnership shall be dissolved and liquidated, but the offending spouse shall have no right to any share of the net profits earned by the absolute community or the conjugal partnership, which shall be forfeited in favor of the common children or, if there are none, the children of the guilty spouse by a previous marriage, or in default of children, the innocent spouse;
(c) custody of the minor children shall be awarded to the innocent spouse, subject to Article 213 of the Family Code; and
(d) the offending spouse shall be disqualified from inheriting from the innocent spouse by intestate succession, and provisions in favor of the offending spouse in the will of the innocent spouse shall be revoked by operation of law. (Article 63, Family Code)
No. While legal separation permits the partial suspension of marital relations, the marriage bond still exists and is not severed as in the case of annulment or nullity of marriage.
An action for legal separation should be filed within five (5) years from the time of the occurrence of the cause. (Article 57, Family Code)
Divorce is a legal decree that ends a marriage before the death of either spouse.
No, divorce remains illegal in the Philippines.
No, a divorce obtained abroad by Filipino spouses will not be recognized in the Philippines. The nationality principle states that laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad. (Article 15, New Civil Code of the Philippines)
Can a marriage between two Filipinos celebrated abroad be dissolved by obtaining a divorce decree from the country where the marriage was celebrated?
No, the divorce decree will not be valid and will not affect the marital status of the Filipino spouses when they return to the Philippines. The spouses are covered by the nationality principle.
Will a divorce decree obtained for a marriage between a Filipino and a foreigner be valid and binding on the Filipino spouse?
Yes, regardless of who among the spouses obtained the divorce decree, the decree shall be binding on the Filipino spouse. Thus, the Filipino spouse may remarry after a divorce decree was obtained, provided that such divorce decree was recognized by a Philippine court. (Republic v. Manalo, G.R. 221029, 24 April 2018)
Does a divorce decree automatically take effect after its issuance abroad thereby allowing the Filipino spouse to remarry?
No, the divorce decree does not automatically take effect with respect to the Filipino spouse. Before the Filipino spouse can remarry, the Filipino spouse must present before a Philippine court the appropriate petition for recognition of foreign divorce.
What is the consequence if the Filipino spouse remarries before a petition for recognition of foreign divorce is granted?
The Filipino spouse may be found guilty of bigamy.
Adoption is the process of making a child, whether related or not to the adopter, possess in general, the rights accorded to a legitimate child. It is a juridical act, a proceeding in rem which creates between two persons a relationship similar to that which results from legitimate paternity and filiation. The modern trend is to consider adoption not merely as an act to establish a relationship of paternity or filiation, but also as an act which endows a child with a legitimate status. (In the Matter of the Adoption of Stephanie Nathy Astorga, G.R. No. 148311, 31 March 2005)
Domestic adoption is an adoption proceeding which is not inter-country. It applies to the adoption of Filipino children, where the entire adoption process, beginning from the filing of the petition up to the issuance of the adoption decree, takes place in the Philippines. (Elmer T. Rabuya, Civil Law Reviewer, Vol I, 2017)
A and B are married but are unable to conceive a child. C, the niece of A, became pregnant out of wedlock and does not have the capacity to raise the child. C proposed that A and B raise the child as their own. A and B agreed. Was there a valid adoption?
No. Adoption is a juridical act, a proceeding in rem which creates between two persons a relationship similar to that which results from legitimate paternity and filiation. Only an adoption via judicial proceeding, or in accordance with the procedure laid down in Rule 99 of the Rules of Court, is valid in the Philippines. It is not of natural law at all, but is wholly and entirely artificial. To establish the relation, the statutory requirements must be strictly carried out, otherwise, the adoption is an absolute nullity. The fact of adoption is never presumed but mut be affirmatively proved by the person claiming its existence. (Lazatin v. Campos, Jr., G.R. No. L-43955-5, 30 July 1979)
Filipino citizens, foreigners, and guardians with respect to their ward after the termination of the guardianship, may adopt. If the adopter is a Filipino citizen, he or she must be:
(a) Of legal age;
(b) In possession of full civil capacity and legal rights;
(c) Of good moral character;
(d) Has not been convicted of any crime involving moral turpitude;
(e) Emotionally and psychologically capable of caring for children;
(f) In a position to support and care for the child in keeping with the means of the family; and
(g) At least sixteen years older than the adoptee, unless (i) the adopter is the biological parent of the adoptee; or (ii) the adopter is the spouse of the adoptee’s parent. (Section 7 (a), Article III, R.A. No. 8552)
If the adopter is a foreigner, he or she must:
(a) Possess the same qualifications as those enumerated for Filipino adopters;
(b) His or her country has diplomatic relations with the Philippines;
(c) He or she has been living in the Philippines for at least three continuous years prior to the filing of the petition for adoption, and maintains such residence until the adoption decree is entered, unless (i) he or she is a former Filipino citizen who seeks to adopt a relative within the fourth civil degree of consanguinity or affinity; (ii) he or she is married to a Filipino and seeks to adopt the legitimate or illegitimate child of his or her Filipino spouse; or (iii) he or she is married to a Filipino and seeks to adopt jointly with his or her spouse a relative within the fourth civil degree of consanguinity or affinity;
(d) Has been certified by the diplomatic or consular office or any appropriate government agency that he or she has legal capacity to adopt in his or her country; and
(e) His or her government allows the adoptee to enter his or her country as his or her son or daughter. (Section 7 (b), Article III, R.A. No. 8552)
The following may be adopted:
(a) Any person below eighteen years of age who has been administratively or judicially declared available for adoption;
(b) The legitimate child of one spouse by the other spouse;
(c) An illegitimate child by a qualified adopter to improve his or her status to that of legitimacy;
(d) A person of legal age, if prior to the adoption, has been consistently considered and treated by the adopter as his or her own child since minority;
(e) A child whose adoption has been previously rescinded; and
(f) A child whose biological or adoptive parent/s has/have died, provided that no proceedings shall be initiated within six month from the time of death of the said parent/s. (Section 8, Article II, R.A. No. 8552).
In general, yes. The rule is that the husband and wife must jointly adopt because they both shall exercise joint parental authority over the adopted child. Since an adopted child will be elevated to the level of a legitimate child, it is natural to require that the spouses adopt jointly. (In re: Petition for Adoption of Michelle and Michael Lim, G.R. Nos. 168992-93, 21 May 2009).
However, there are exceptions.
As exceptions to the general rule, a husband or wife may adopt on his or her own when:
(a) One spouse seeks to adopt the legitimate child of the other;
(b) The spouses are legally separated; or
(c) One spouse seeks to adopt his own illegitimate child, provided that the other spouse signifies his or her consent (Section 7, Article III, R.A. No. 8552)
Supervised trial custody refers to the period of time during which a social worker oversees the adjustment and emotional readiness of both adopters and adoptee in stabilizing their filial relationship. (Section 2 (q), Rule on Adoption)
The supervised trial custody is done before the issuance of the decree of adoption, wherein the court shall give the adopter a trial custody of the adoptee for a period of at least six (6) months, within which the parties are expected to adjust psychologically and emotionally to each other and establish a bonding relationship. During the period, temporary parental authority is vested in the adopter. (Section 15, Rule on Adoption)
Inter-country adoption refers to the socio-legal process of adopting a child by a foreigner or a Filipino citizen permanently residing abroad where the petition for adoption is filed, the supervised trial custody is undertaken and the decree of adoption is issued. (Section 3 (v), Article II, IRR of R.A. No. 8043).
Yes, inter-country adoption is governed by is Republic Act No. 8043, otherwise known as the “Inter-Country Adoption Act of 1995”. The procedure for inter-country adoption is governed by the Amended Implementing Rules and Regulations on Inter-Country Adoption.
Yes. A child legally available for adoption may either be below eighteen (18) years of age, or a person over eighteen (18) years of age but is unable to fully take care of himself/herself or protect himself/herself from abuse, neglect, cruelty, exploitation, or discrimination because of physical or mental disability or condition. (Section 2 (2), R.A. No. 9523)
No. The adoptive parents cannot specify their gender preference.
An alien or a Filipino citizen permanently residing abroad may adopt by filing an application for the inter-country adoption of a child if they have the following qualities:
(a) At least twenty-seven (27) years of age and at least sixteen (16) years older than the child to be adopted, at the time of the application, unless the adopter is the parent by nature of the child to be adopted, or the adopter is the spouse of the parent by nature of the child to be adopted;
(b) Has the capacity to act and assume all rights and responsibilities incidental to parental authority under his/her national laws;
(c) Has undergone the appropriate counseling from an accredited counselor in his/her country;
(d) Has not been convicted of a crime involving moral turpitude;
(e) Is eligible to adopt under his/her national law;
(f) Is in a position to provide the proper care and support and to give the necessary moral values and example to all his children, including the child to be adopted;
(g) Agrees to hold the basic rights of the child as embodied under Philippine laws and the U.N. Convention on the Rights of the Child, and to abide by the rules and regulations issued to implement the provisions of R.A. No. 8043;
(h) Comes from a country with whom the Philippines has diplomatic relations, and whose government maintains a similarly authorized and accredited agency, and whose laws allow adoption;
(i) Possesses all the qualifications and none of the disqualifications provided in R.A. No. 8043 and in other applicable laws; and
(j) If married, files jointly with his/her spouse. (Section 27, Article VIII, IRR of R.A. No. 8043).
An application to adopt a child may be filed either in:
(a) the Regional Trial Court having jurisdiction over the place where the child resides or may be found (Section 28, New Rule on Adoption); or
(b) with the Inter-Country Adoption Board (ICAB), through an intermediate agency, whether governmental or an authorized and accredited foreign adoption agency in the country where the prospective adoptive parents reside (Section 10, R.A. No. 8043).
Foreigners who opt to file their application for adoption in accordance with the Domestic Adoption Act of 1998 need not to submit the application to ICAB. The Court shall refer the application to ICAB after finding it to be sufficient in form and substance and a proper case for inter-country adoption.
Yes, there are various marital requirements depending on the marital status of the adopter.
For married inter-country adoption applicants, they should be married for at least three (3) years before applying for inter- country adoption.
For applicants in a common law relationship culminating into a legal marriage, they must be married for at least one (1) year, and the stability of the relationship prior to marriage is taken into consideration.
For applicants with a history of divorce, a maximum of two (2) divorce histories will be accepted.
There is no prohibition against single applicants. However, effective July 2007, the ICAB has set a moratorium on the acceptance of single applicants unless the child preference is a child with special needs.
An adoption is illegal if it is effected in any manner contrary to the provisions of R.A. No. 8043 or established state policies, its implementing rules and regulations, executive agreements and other laws pertaining to adoption.
VAWC (Violence Against Women and their Children)
VAWC, or violence against women and their children, is defined and codified in Republic Act (R.A.) No. 9262, otherwise known as the Anti-Violence Against Women and their Children Act of 2004.
The phrase ‘violence against women and their children’ refers to any act or series of acts committed by any person against a woman who is his wife or former wife, or against a woman with whom that person has or had a sexual or dating relationship, or with whom he has a common child, or against her child, whether legitimate or illegitimate, within or without the family abode, which result in or is likely to result in physical, sexual, psychological harm or suffering, or economic abuse, including threats of such acts, battery, assault, coercion, harassment or arbitrary deprivation of liberty. (Section 3(a), R.A. No. 9262)
R.A. No. 9262 prohibits and punishes the following acts of violence:
(a) Physical Violence, acts which include bodily or physical harm;
(b) Sexual Violence, acts which are sexual in nature, committed against a woman or her child;
(c) Psychological Violence, acts or omissions causing or likely to cause the mental or emotional suffering of the victim/s; and
(d) Economic Abuse, acts which make or attempt to make a woman financially dependent on her abuser. (Section 3, R.A. 9262.)
The following are the persons specifically protected by R.A. No. 9262:
(b) Former wife;
(c) A woman with whom the offender has or had sexual or dating relations with;
(d) A woman with whom the offender has a common child with;
(e) The legitimate or illegitimate child of the woman within or without the family abode. (Section 3 (a), R.A. No. 9262).
A dating relationship refers to a situation where the parties live as husband and wife without the benefit of marriage, or are romantically involved over time and on a continuing basis. A casual acquaintance, or an ordinary socialization between two individuals in a business or social context is not a dating relationship. (Section 3 (e), R.A. No. 9262)
Must the acts of violence occur during the existence of a “dating relationship” between the accused and the offended party?
No. While it is required that the offender has or had a sexual or dating relationship with the offended woman in order for the provisions of R.A. No. 9262 to be applicable, it is not indispensable that the act of violence be a consequence of such relationship. It is immaterial whether the relationship has ceased as of the time of the occurrence of the acts of violence, as long as there is sufficient evidence showing the past or present existence of such relationship between the offender and the victim when the physical harm was committed. (Dabalos v. RTC Branch 59, Angeles City, G.R. No. 193960, 7 January 2013)
Acts of violence covered by the Anti-Violence Against their Women and the Children Act of 2004 may be committed by any person with whom the victim has an intimate relationship with. These include, but are not limited to, the woman’s husband, ex-husband, live-in partner, former live-in partner, boyfriend, ex-boyfriend, girlfriend, ex-girlfriend, and so on and so forth. Thus, the offense may be committed by a man or a woman with whom the victim has or had a sexual or dating relationship. The same persons may likewise be charged under R.A. No. 9262. (Garcia v. Drilon, G.R. No. 179267, 25 June 2013)
The Regional Trial Court designated as a Family Court shall have exclusive jurisdiction over cases of violence against and their children under R.A. No. 9262. In the absence of such court in the place where the offense was committed, the case shall be filed in the Regional Trial Court where the crime or any of its elements was committed at the option of the complainant. (Section 7, R.A. No. 9262)
A protection order is an order issued under R.A. No. 9262 for the purpose of safeguarding the offended woman or her children from further harm, minimizing any disruptions in the victim’s daily life, and facilitating the opportunity and ability of the victims to independently regain control over their lives. (Section 8, R.A. No. 9262)
The types of protection orders that may be issued pursuant to R.A. No. 9262 are the Barangay Protection Order, a Temporary Protection Order, and a Permanent Protection Order. (Section 8, R.A. No. 9262)
A petition for the issuance of a protection order may be filed by the offended party, the parent or guardian of the offended party, the ascendant, descendant or collateral relative within the fourth civil degree of consanguinity or affinity of the offended party, officers or social workers of the DSWD or social workers of the relevant local government unit, police officers, the Punong Barangay or kagawad, the lawyer, counselor, therapist or healthcare provider of the offended party, or by at least two (2) concerned responsible residents of the city or municipality where the violence occurred, both of whom have personal knowledge of the offense. (Ocampo v. Judge Evelyn Arcaya-Chua, A.M. OCA IPI No. 07-2630-RTJ, 23 April 2010)
Barangay Protection Orders may be applied for in the barangay where the applicant is located or resides. This may include the place where the offended party temporarily resides or where she sought refuge/sanctuary to escape from and avoid continuing violence from their abuser. (Section 15, Implementing Rules and Regulations of R.A. No. 9262.)
Applications for Temporary Protection Orders and Permanent Protection Orders may be filed in the Family Court or, if there is none, in the Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court, Municipal Trial Court in Cities, Municipal Circuit Trial Court, in the place of residence of the offended party. Likewise, this may include the place where the offended party temporarily resides or where she sought refuge/sanctuary to escape from and avoid continuing violence from their abuser. (Section 21, IRR of R.A. No. 9262)
DSWD Travel Clearance
My sister is an OFW in Hong Kong and a single mother to two children. I take care of her children while she works abroad. For Christmas, my sister wants to surprise her children with a trip to Hong Kong Disneyland and asked me to fly them to Hong Kong. What documents would I need to prepare for our flight?
Apart from your passports, you will need to secure a Department of Social Welfare and Development (DSWD) Travel Clearance for the two minor children since you are not their parent or legal guardian.
A DSWD Travel Clearance is issued by the DSWD to a Filipino minor child who is traveling out of the Philippines, either alone or with someone who is not his or her parents.
All Filipino minors traveling abroad without his/her parents are required to secure the clearance. A minor is a person who is below 18 years of age.
Yes, the following are not required to secure a travel clearance from the DSWD:
(a) Legitimate children traveling with either or both parents;
(b) Illegitimate children traveling with their biological mother;
(c) Illegitimate children traveling with their father who has been granted sole parental authority by the court;
(d) Children traveling with their legal guardian;
(e) Adopted children traveling with their adoptive parents;
(f) Immigrants to another country who hold a valid permanent residency card or any other pass issued by another country proving the child’s residency with his/her parents abroad; and
(g) Non-Filipino citizens who hold a foreign passport.
Yes. The DSWD Travel Clearance for minors is part of the Philippine government’s effort to ensure a child’s safety and protection against human trafficking, exploitation and other forms of abuse that a minor may encounter abroad. When a child travels alone in a foreign country without a DSWD Travel Clearance, without a written permit from the child’s parents or legal guardian, there is an attempt to commit child trafficking. An attempt to commit child trafficking is punished by a penalty two degrees lower than the penalty imposed on the crime of child trafficking. (Section 8 (a), R.A. No. 7610)
A parental travel permit is a written permission executed by any one of the biological parents who will be left behind and not in the company of the legitimate child when the latter leaves the country. It indicates that the parent consents to the minor’s overseas travel with the other parent. (DWSD Administrative Order No. 149, series of 2001).
A parental travel permit is a written permission executed by any one of the biological parents who will be left behind and not in the company of the legitimate child when the latter leaves the country. It indicates that the parent consents to the minor’s overseas travel with the other parent. (DWSD Administrative Order No. 149, series of 2001).
A Filipino legitimate child who is traveling with only one parent or guardian is required to present a parental travel permit to the DSWD Field Office which has jurisdiction over the minor’s residence.
Who May Own Land
In general, only Filipino citizens and corporations at least 60% of the outstanding capital stock of which is owned by Filipinos may acquire land in the Philippines.
Foreigners may acquire land in the Philippines:
(a) If such foreigner acquired the property before the 1935 Constitution;
(b) If the property is acquired through hereditary succession;
(c) Purchase by a former natural-born Filipino of land, subject to limitations imposed by law; and
(d) If the property is a condominium unit, and the purchase by the foreigner of such unit does not result in the condominium project having foreign interest in excess of 40%.
Sale of Real Estate
A contract of sale is one where one of the contracting parties obligates himself to transfer the ownership and to deliver a determinate thing, and the other to pay therefor a price certain in money or its equivalent. (Article 1458, Civil Code)
A contract to sell is an agreement which stipulates that the seller shall execute a deed of absolute sale only upon the fulfillment of a condition, such as the full payment of the purchase price. (Diego v. Diego, G.R. No. 179965, 20 February 2013)
In a contract of sale, title passes to the vendee upon the delivery of the thing sold; whereas in a contract to sell, by agreement the ownership is reserved in the seller and is not to pass until the full payment of the price. In a contract of sale, the seller lost and cannot recover ownership until and unless the contract is resolved or rescinded; whereas in a contract to sell, title is retained by the seller until full payment of the price. (Spouses Beltran v. Spouses Cangayda, G.R. No. 225033, 15 August 2018)
Real Estate Mortgage
A real estate mortgage is a contract whereby the debtor secures to the creditor the fulfillment of a principal obligation, specially subjecting to such security immovable property or real rights over immovable property in case the principal obligation is not complied with at the time stipulated.
The following requisites must be present for a real estate mortgage to be valid:
(a) The real estate mortgage must be constituted to secure the fulfillment of a principal obligation;
(b) The mortgagor must be the absolute owner of the mortgaged property;
(c) The mortgagor must have free disposal of the mortgaged property, or in the absence thereof, must be legally authorized for the purpose;
(d) The mortgaged property must be either an immovable property or an alienable real right over immovable property; and
(e) To bind third persons, the instrument where the mortgage appears must be recorded in the registry of property. (Articles 2085, 2124 and 2125, Civil Code)
In determining the existence of an employer-employee relationship, the elements that are considered comprises what has become known as the four-fold test: (a) the selection and engagement of the employee; (b) the payment of wages; (c) the power of dismissal; and (d) the power of control over the means and methods by which the work is to be accomplished. Of these four, the control test is the most crucial and important. (Alba v. Espinosa, G.R. No. 227734, 9 August 2017)
Under the control test, there is an employer-employee relationship if the person for whom the services are performed has the right to control both the end achieved and the manner and means used to achieve that end. It must, however, be stressed that the control test merely called for the existence of the right to control, and not necessarily the exercise thereof. The test does not require that the employer actually supervises the performance of duties by the employee. (Felicilda v. Uy, G.R. No. 221241, 14 September 2016)
Under the economic dependence test, the determination of the relationship between the employer and employee depends on the circumstances of the whole economic activity, such as (a) the extent to which the services performed are an integral part of the employer’s business; (b) the extent of the worker’s investment in equipment and facilities; (c) the nature and degree of control exercised by the employer; (d) the worker’s opportunity for profit and loss; (e) the amount of initiative, skill, judgment or foresight required for the success of the enterprise; (f) the permanency and duration of the relationship between the worker and the employer; and (g) the degree of dependency of the worker upon the employer for his continued employment in that line of business. (Francisco v. National Labor Relations Commission, G.R. No. 170087, 31 August 2006)
There is no uniform test to determine the existence of an employer-employee relationship (Sevilla v. Court of Appeals, G.R. Nos. L-41182-3, 15 April 1988)
However, courts have used both the control test in conjunction with the economic dependence tests.
There are instances when, aside from the employer’s power to control the employee with respect to the means and methods by which the work is to be accomplished, economic realities of the employment relationship help provide a comprehensive analysis of the true classification of the individual, whether as employee, independent contractor, corporate officer or some other capacity. The better approach would therefore be to adopt a two-tiered test involving: (a) the putative employer’s power to control the employee with respect to the means and methods by which the work is to be accomplished; and (b) the underlying economic realities of the activity or relationship. (Francisco v. National Labor Relations Commission, G.R. No. 170087, 31 August 2006)
Will an employer-employee relationship be removed if the employee is called by some other name in the employment contract?
No. The existence of an employer-employee relationship is determined by law.
The supremacy of the law over the nomenclature of the contract and the stipulations contained therein is to bring to life the policy enshrined in the Constitution to afford full protection to labor. Labor contracts, being imbued with public interest, are placed on a higher plane than ordinary contracts and are subject to the police power of the State. (GMA Network, Inc. v. Pabriga, G.R. No. 176419, 27 November 2013)
Types of Employment
A regular employee is one whose functions are necessary or desirable to the main business of the employer.
What determines whether a certain employment is regular or casual is not the will and word of the employer. It is the nature of the activities performed in relation to the particular business or trade considering all circumstances, and in some cases the length of time of its performance and its continued existence. (De Leon v. National Labor Relations Commission, G.R. No. 70705, 21 August 1989)
A casual employee is one who is engaged to perform a job, work or service which is merely incidental to the business of the employer, and such job, work or service is for a definite period made known to the employer at the time of engagement. Any employee who has rendered at least one year of service, whether continuous or not, shall be considered a regular employee with respect to the activity in which he is employed and his employment shall continue while such activity exists. (Article 294, Labor Code)
A project employee is one whose employment has been fixed for a specific project or undertaking, the completion or termination of which has been determined at the time of engagement of the employee. (Article 294, Labor Code)
For employment to be regarded as project-based, it is incumbent upon the employer to prove that (a) the employee was hired to carry out a specific project or undertaking; and (b) the employee was notified of the duration and scope of the project.
In order to safeguard the rights of workers against the arbitrary use of the word “project” as a means to prevent employees from attaining regular status, employers must prove that the duration and scope of the employment were specified at the time the employees were engaged, and prove the existence of the project. (Bajaro v. Metro Stonerich Corp.
(G.R. No. 227982, 23 April 2018)
A seasonal employee is one who performs work or service that is seasonal in nature and the employment is for the duration of the season. (Article 294, Labor Code)
Seasonal employees may be considered regular employees. Regular seasonal employees are those called to work from time to time. The nature of their relationship with the employer is such that during the off season they are temporarily laid off, but during the summer season they are re-employed, or when their services may be needed. Strictly speaking, they are not separated from service but are considered on leave of absence without pay until they are re-employed. Their employment relationship is not severed but only suspended. (Manila Hotel Co. v. Court of Industrial Relations, G.R. No. L- 18875, 30 September 1963)
For seasonal employees not to be considered regular employees, it is not enough that they perform work or services that are seasonal in nature. They must be employed only for the duration of one season. (Hacienda Fatima v. National Federation of Sugarcane Workers, G.R. No. 149440, 28 January 2003)
A fixed-term or fixed-period employee is one who has been engaged for a specific term or period.
Fixed-term employment is allowed by law.
Contracts of employment for a fixed term are not proscribed by law, provided that they had been entered into by the parties without any force, duress, or improper pressure being brought to bear upon the employee and absent any other circumstance vitiating consent. (De La Salle Araneta University v. Bernardo, G.R. No. 190809, 13 February 2017)
Contracting or sub-contracting is an arrangement whereby a principal agrees to put out or farm out with a contractor or subcontractor the performance or completion of a specific job, work or service within a definite or predetermined period, regardless of whether such job, work or service is to be performed or completed within or outside the premises of the principal. (Section 3 (c), D.O. No. 18-A)
Yes, contracting and sub-contracting arrangements are expressly allowed by law and are subject to regulation for the promotion of employment and the observance of the rights of workers to just and humane condition of work, security of tenure, self-organization, and collective bargaining. (Section 1, D.O. No. 18-A)
There is labor-only contracting is an arrangement where:
(a) The contractor does not have substantial capital or investments in the form of tools, equipment, machineries, work premises, among others, and the employees recruited and placed are performing activities which are usually necessary or desirable to the operation of the company, or directly related to the main business of the principal within a definite or predetermined period, regardless of whether such job, work or service is to be performed or completed within or outside the premises of the principal; or
(b) The contractor does not exercise the right of control over the performance of the work of the employee. (Section 6, D.O. No. 18-A)
The contractor does not have substantial capital or investments in the form of tools, equipment, machineries, work premises, among others, and the employees recruited and placed are performing activities which are usually necessary or desirable to the operation of the company, or directly related to the main business of the principal within a definite or predetermined period, regardless of whether such job, work or service is to be performed or completed within or outside the premises of the principal; or
The contractor does not exercise the right of control over the performance of the work of the employee. (Section 6, D.O. No. 18-A)
No, labor-only contracting is expressly prohibited by law. (Section 6, D.O. No. 18-A)
A finding by competent authority of labor-only contracting shall render the principal jointly and severally liable with the contractor to the latter’s employees, in the same manner and extent that the principal is liable to employees directly hired by him/her. (Section 27, D.O. No. 18-A)
Yes, an employee may terminate the employer-employee relationship without just cause, provided that written notice on the employer is given at least one month in advance. (Article 299, Labor Code)
What happens if an employee resigns without cause and without giving one month notice to his employer?
The employer upon whom no notice was served may hold the employee liable for damages. (Article 299, Labor Code)
Yes, an employee may put an end to the relationship without serving any notice on the employer for any of the following just causes:
(a) Serious insult by the employer or his representative on the honor and person of the employee;
(b) Inhuman and unbearable treatment accorded the employee by the employer or his representatives;
(c) Commission of a crime or offense by the employer or his representative against the person of the employee or any of the immediate members of his family; and
(d) Other causes analogous to the foregoing. (Article 285 (b), Labor Code)
Just Causes for Termination
An employer may terminate the services of an employee for just causes under Article 296 of the Labor Code and for authorized causes under Articles 297 and 298.
Article 296 of the Labor Code lists the following just causes:
(a) Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work;
(b) Gross and habitual neglect by the employee of his duties;
(c) Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative;
(d) Commission of a crime or offense by the employee against the person of his employer or any immediate member of this family or his duly authorized representative; and
(e) Other causes analogous to the foregoing.
Misconduct is improper or wrong conduct. It is the transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, willful in character, and implies wrongful intent and not mere error in judgment. The misconduct must be serious, and must be of such grave character and not merely trivial or unimportant, and must be in connection with the employee’s work to constitute a just cause for his separation. (Filipro v. National Labor Relations Commission, G.R. No. 70546, 16 October 1986)
For willful disobedience to constitute a just cause for dismissal, the following requisites must concur:
(a) The assailed conduct must be willful or intentional, the willfulness being characterized by a wrongful and perverse attitude; and
(b) The order violated must reasonable, lawful, made known to the employee, and must pertain to the duties which he has been engaged to discharge. (Gold City Integrated Port Services, Inc. v. National Labor Relations Commission, G.R. No. 86000, 21 September 1990)
There is gross negligence when there is an absence of or failure to exercise slight care or diligence, or when there is an entire absence of care. Gross habitual neglect evinces a thoughtless disregard of consequences without exerting any effort to avoid them. (Citibank v. Gatchalian, G.R. No. 68890, 15 April 1988)
Yes, abandonment is a form of neglect of duty. However, to constitute abandonment, two elements must concur:
(a) The failure to report for work or absence without valid or justifiable reasons; and
(b) A clear intention to sever the employer-employee relationship. (Labor v. NLRC and Gold City Commercial Complex, Inc., G.R. No. 110388, 14 September 1995)
Fraud refers to any act, omission or concealment which involves a breach of legal duty, trust or confidence justly reposed, and is injurious to another. (Section 4 (i), D.O. No. 147-15)
To constitute a just cause for dismissal, fraud must be committed against the employer or his representative, in connection with the employee’s work. Thus, fraud committed by an employee against a third person not in connection with his work and which does not involve the employer is not a ground for dismissal. (Section 4343.01 (3), Department of Labor Manual)
For loss of confidence to be a valid ground for dismissal, the following requisites must concur:
(a) Loss of confidence should not be simulated;
(b) It should not be used as a subterfuge for causes which are improper, illegal or unjustified;
(c) It must be genuine, not a mere afterthought to justify an earlier action taken in bad faith; and
(d) The employee involved holds a position of trust and confidence. (Midas Touch Food Corp. v. National Labor Relations Commission, G.R. No. 111639, 29 July 1996)
Authorized Causes for Termination
Articles 297 and 298 of the Labor Code lists the following authorized causes:
(a) Installation of labor-saving devices;
(d) Closing or cessation of operations; and
The introduction of machinery and automation processes for the purpose of increasing efficiency and productivity are considered labor-saving devices, and may constitute an authorized cause for termination.
Hence, the reduction of the number of workers in a company’s factory resulting from the installation of machinery in the manufacture of products was held to be justified. (Philippine Sheet Metal Workers’ Union v. Court of Industrial Relations, G.R. No. L-2028, 28 April 1949)
Redundancy exists where the services of an employee are in excess of what is reasonably demanded by the actual requirements of the enterprise. Thus, a position is redundant where it is superfluous, and superfluity in a position may be the outcome of a number of factors, such as over-hiring of workers, decreased volume of business, or dropping of a particular product line or service activity previously manufactured or undertaken by the enterprise. (Solid Lines Corporation v. National Labor Relations Commission, G.R. No. 74482, 5 November 1986)
Retrenchment is one of the economic grounds resorted to by an employer to terminate employment primarily to avoid or minimize business losses. (Precision Electronics Corporation v. National Labor Relations Commission, G.R. No. 86657, 23 October 1989)
Yes. The institution of “new methods or more efficient machinery, or of automation” is technically a ground for termination of employment by reason of installation of labor-saving devices. However, where the introduction of these methods is resorted to not merely to effect greater efficiency in the operations of the business but principally because of serious business reverses and to avert further losses, the device could then verily be considered one of retrenchment. (Edge Apparel vs. National Labor Relations Commission, G.R. No. 121314, 12 February 1998)
Disease is a ground for dismissal if the continued employment of the employee is prohibited by law or prejudicial to his health or to the health of his co-employees, and there is a certification by a competent public health authority that the disease is of such a nature or at such a stage that it cannot be cured within a period of six months even with proper medical treatment. (Section 8, Rule 1, Book VI, IRR of the Labor Code)
B.P. Blg. 22
The gravamen of Batas Pambansa Blg. 22, or commonly referred to as the Bouncing Checks Law, is the act of making and issuing a worthless check, or a check that is dishonored upon its presentation for payment. It is not the non-payment of an obligation which the law punishes. The thrust of the law is to prohibit the making of worthless checks and putting them in circulation. The law punishes the act not as an offense against property, but as an offense against public order. (Sumbilla v. Matrix Finance Corporation, G.R. No. 197582, 29 June 2015)
A violation of B.P. Blg. 22 is composed of the following elements:
(a) The making, drawing and issuance of any check to apply for account or for value;
(b) The knowledge of the maker, drawer or issuer that, at the time of issue, he does not have sufficient funds in or credit with the drawee bank for the payment of the check in full upon its presentment; and
(c) The subsequent dishonor of the check by the drawee bank for insufficiency of funds or credit, or dishonor for the same reason had not the drawer, without any valid cause, ordered the bank to stop payment. (Ting v. Court of Appeals, G.R. No. 140665, 13 November 2000)
In general, if the check was drawn by a corporation, the person/s who actually signed the check on behalf of the corporation is liable under B.P. Blg. 22. (Section 1, B.P. Blg. 22)
To hold a person liable under B.P. Blg. 22, it is not enough to establish that a check issued was subsequently dishonored. It must be shown further that the person who issued the check knew at the time of issue that he does not have sufficient funds in or credit with the drawee bank. Section 2 of the law creates a prima facie presumption of such knowledge if the check is refused by the drawee bank when presented ninety (90) days from the date of the check.
It must also be shown that the drawer received a notice of dishonor and, within five banking days thereafter, failed to satisfy the amount of the check or make arrangements for its payment. (Chua v. People of the Philippines, G.R. No. 196853, 13 July 2015)
Yes. Mere oral notice or demand to pay is insufficient for conviction under the law. For the act to be punished, the Bouncing Checks Law requires not only that the accused issued a check that was dishonored, but also the accused has been actually notified in writing of the fact of such dishonor. (Domagsang v. Court of Appeals, G.R. No. 139292, 5 December 2000)
Can a criminal action for estafa and a violation of B.P. Blg. 22 against the same person be filed at the same time?
Yes. Essentially, while BP 22 case and an estafa case may be rooted from an identical set of facts, they nevertheless present differenct causes of action, which under the law, are considered “separate, distinct, and independent” from each other. Therefore, both cases can proceed to their final adjudication—both as to their criminal and civil aspects—subject to the prohibition on double recovery. (Rimando v. Spouses Aldaba, G.R. No. 203583, 13 October 2014)
There are several forms of estafa. Generally, however, estafa is a criminal offense wherein a person defrauds another through any of the following means:
(a) By unfaithfulness or abuse of confidence;
(b) By means of false pretenses or fraudulent act; or
(c) Through fraudulent means. (Article 315, Revised Penal Code)
As an element of estafa, damage may consist of:
(a) The offended party being deprived of his money or property as a result of the defraudation;
(b) Disturbance in property rights; or
(c) Temporary prejudice. (Tan v. People of the Philippines, G.R. No. 153460, 29 January 2007)
Syndicated estafa is committed when five or more persons commit estafa or other forms of swindling under Article 315 or Article 316 of the Revised Penal Code, resulting in the misappropriation of funds contributed by stockholders, or members of rural banks, cooperatives, samahang nayons or farmers’ associations, or funds solicited by corporations or associations from the general public. (Section 1, P.D. No. 1869)
Syndicated estafa is punishable by life imprisonment to death, regardless of the value of the damage or prejudice caused to the offended parties. (Section 1, P.D. No. 1869)
An ejectment case is a summary proceeding designed to provide expeditious means to protect actual possession of real property. The only issue to be resolved in ejectment proceedings is who is entitled to the possession of the property. (Eversley Childs Sanitarium v. Spouses Barbarona, G.R. No. 195814, 14 April 2018)
There are two kinds of ejectment proceedings in the Philippines, namely unlawful detainer and forcible entry.
In forcible entry, one is deprived of physical possession of land or a building by means of force, intimidation, threat, strategy pr stealth. In unlawful detainer, one unlawfully withholds possession of the property after the expiration or termination of his right to hold the same under a contract.
In forcible entry, possession is illegal from the beginning. In unlawful detainer, possession was originally lawful but became unlawful by the expiration or termination of the right to possess.
In forcible entry, the plaintiff must allege in the complaint and prove that he or she was in prior physical possession of the property until he was deprived thereof by the defendant. In unlawful detainer, prior physical possession by the plaintiff is not an indispensable requirement.
In forcible entry, a previous demand to vacate is not required. On the other hand, if the ground for an unlawful detainer is the non-payment of rent or failure to comply with a lease contract, a prior demand is jurisdictional.
Both forcible entry and unlawful detainer prescribe in one year. In forcible entry, the one-year prescriptive period is generally counted from the date of actual entry in the property. In unlawful detainer, the one-year period is counted from the date of last demand. (Spouses Muñoz v. Court of Appeals, G.R. No. 102693, 23 September 1992; Sumulong v. Court of Appeals, G.R. No. 108817, 10 May 1994)
The following are the elements of forcible entry:
(a) The plaintiff had prior physical possession of the property;
(b) The plaintiff was deprived of possession by force, intimidation, threat, strategy or stealth; and
(c) The action was filed within one year from the time the plaintiff learned of the deprivation of physical possession of the property. (Mangaser v. Ugay, G.R. No. 204926, 3 December 2014)
The following are the elements of unlawful detainer:
(a) Initially, the possession by the defendant of the property was by contract with or by tolerance of the plaintiff;
(b) The possession by the defendant became illegal, upon notice by the plaintiff to the defendant of the termination of his right of possession;
(c) The defendant remained in possession of the property and deprived the plaintiff of its enjoyment; and
(d) The action was filed within one year from the last demand on the defendant to vacate the property. (Delos Reyes v. Spouses Odones, G.R. No. 178096, 23 March 2011)
Defamation, Libel and Slander
Defamation is the offense of injuring a person’s character, fame or reputation through false and malicious statements. It tends to injure reputation, or to dimmish the esteem, respect, goodwill or confidence of a person, or to excite derogatory feelings or opinions about such person. Defamation includes libel and slander. (MVRS Publications, Inc. v. Islamic Da’Wah Council of the Philippines, Inc., G.R. No. 135306, 28 January 2003)
Libel refers to the public and malicious imputation of a crime or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit or contempt of a natural or juridical persons, or blacken the memory of one who is dead. (Article 353, Revised Penal Code)
The elements of libel are:
(a) There must be an imputation of a crime, or a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance;
(b) The imputation must be made publicly;
(c) It must be malicious;
(d) The imputation must be directed at a natural person or a juridical person, or one who is dead; and
(e) The imputation must tend to cause the dishonor, discredit, or contempt of the person defamed.
Under R.A. No. 10175, otherwise known as the Cybercrime Prevention Act of 2021, cyber libel is committed in the same manner as libel, except for the medium of its commission, which is through a computer system or any other similar means which may be devised in the future. (Section 4 (c) (4), R.A. No. 10175)
Slander or oral defamation is the speaking of base and defamatory words which tend to prejudice another in his reputation, office, trade or business or means of livelihood. (De Leon v. People of the Philippines, G.R. No. 212623, 11 January 2016).
Adultery is committed by any married woman who shall have sexual intercourse with a man not her husband, and by the man who has carnal knowledge of her, knowing her to be married, even if the marriage be subsequently declared void. (Article 333, Revised Penal Code).
The persons who can be liable for adultery are:
(a) A married woman who engages in sexual intercourse with a man not her husband; and
(b) The man, knowing of the marriage of the woman, who has sexual intercourse with her. (Article 333, Revised Penal Code)
The elements of adultery are:
(a) The woman is married;
(b) She had sexual intercourse with a man not her husband; and
(c) As regards with the man, he must know her to be married.
I caught my wife half naked in our bed with another man prior to sexual intercourse. Can I file for frustrated adultery against them?
No, there is no frustrated adultery. Adultery is an instantaneous crime which is consummated and exhausted or completed at the moment of the carnal union. (People v. Zapata and Bondoc, G.R. No. L-3407, 16 May 1951)
I am an OFW. My mother caught my wife having sex with our neighbor. Can my mother file a criminal action for adultery against my wife?
No. The law specifies that only the offended spouse can file a case of adultery against the offending spouse. No one else may file the complaint on behalf of the offended spouse, not even the State. The criminal complaint will not prosper should it be filed by a third person. (Section 5, Rule 110, Revised Rules of Criminal Procedure)
I filed a case for adultery against my wife and the man she had sexual intercourse with. During the pendency of the case, my wife died. Can the case be dismissed against the man because of the death of my wife?
No. The death of the woman during the pendency of the action cannot defeat the trial and conviction of the paramour. (U.S. v. Topino, G.R. No. 11895, 20 December 1916)
I caught my wife having sex with her friend. When I confronted them, my wife cried and asked for forgiveness. I forgave her and we continued living together. Eventually, I realized that I made a mistake. Can I still file a case against my wife for adultery?
No. The offended spouse is barred from instituting a criminal complaint against the guilty parties when he pardons or consents to their infidelity. However, if after the pardon, the wife and her lover continue their sexual relationship, the husband can charge them both for the crime of adultery as his pardon only covers the previous transgressions of his wife and her paramour.
Concubinage is committed by any husband who:
(a) shall keep a mistress in the conjugal dwelling;
(b) shall have sexual intercourse, under scandalous circumstances, with a woman who is not his wife; or
(c) shall cohabit with a woman not his wife in any other place. (Article 344, Revised Penal Code)
Adultery is committed by the wife, while concubinage is committed by the husband.
In adultery, proof of sexual intercourse is sufficient. In concubinage, the offended party must prove that sexual intercourse was committed under scandalous circumstances, or that the husband kept a mistress in the conjugal dwelling or has been cohabiting with her in any other place.
The penalty for concubinage is only destierro, and is lower than the penalty for the man in adultery which is the same as that of the guilty wife.
The term cohabit should be construed to mean to dwell or live together as husband and wife; or to live together as husband and wife although not legally married; to live together at bed and board and usually, but not always, implying sexual intercourse. To “cohabit,” according to the sense in which the word is used in a penal statute, means dwelling together as husband and wife, or in sexual intercourse, and comprises a continue period of time. Hence, the offense is not the single act of adultery; it is cohabiting in a state of adultery; and it may be a week, a month, a year, or longer, but still it is one offense only. (People v. Pitoc and Del Basco, G.R. No. 18513, 8 September 1922)
Pedro filed a petition for declaration of nullity of marriage against Jane, on the ground of psychological incapacity. Jane argues that Pedro has left their conjugal home and has been living with his mistress, and filed a case of concubinage against Pedro. Does the pendency of the petition for declaration of nullity of marriage bar the prosecution of the concubinage case filed by Jane?
No. As long as there is no judicial declaration as to the nullity of the marriage, the marriage still exists for all intents and purposes. Therefore, he who cohabits with a woman not his wife before the judicial declaration of nullity assumes the risk of being prosecuted for concubinage. (Beltran v. People, G.R. No. 137567, 20 June 2000)
Is the element of having sexual intercourse under scandalous circumstances indispensable in concubinage?
No. It is only when the mistress is kept elsewhere other than the conjugal dwelling that scandalous circumstances become an element of the crime. (U.S. v. Macabagbag, G.R. No. 10563, 6 August 1915)
No. The persons liable for the crime of concubinage are:
(a) The married man who cohabits or engages in sexual intercourse with a woman not his wife; and
(b) The woman who, knowing that the man is married, cohabits with him or engages in sexual intercourse with him.
After forgiving my husband and giving him a second chance, can I still pursue an action for concubinage against his mistress?
No. You will be barred from instituting a criminal complaint against the guilty parties when you pardon or consent to their infidelity. The pardon absolves your husband of the crime of concubinage. Since concubinage cannot be instituted without including both guilty parties, you may not pursue the action against the mistress only. If you pardon one party, you pardon them both.
The requirements of pardon are:
(a) The pardon must be made before the institution of criminal charges for concubinage; and
(b) Both offenders must be pardoned. (Ligtas v. Court of Appeals, G.R. No. L-47498, 7 May 1987)
The pardon may be express or implied. There is an express pardon when the offended party in writing or in an affidavit asserts that he or she is pardoning his or her erring spouse and paramour for their adulterous act. On the other hand, there is implied pardon when the offended party continues to live with the spouse even after the commission of the offense. However, such consent or pardon cannot be implied when the offended party allows his wife to continue living in the
conjugal home after her arrest only in order to take care of their children. (Ligtas v. Court of Appeals, G.R. No. L-47498, 7 May 1987)
It is an endorsement made on a travel document by a consular officer in the Philippine Embassy or by a consulate abroad signifying that the visa application has been properly examined and that the bearer of the travel documents is permitted to proceed to the Philippines.
No, having a Philippine visa does not guarantee that the holder will be automatically admitted in the Philippines. A Philippine visa signifies only an endorsement and request for the Philippine immigration authorities to permit the entrance in the country of the holder of the visa. The admission of foreign nationals into the Philippines is the function of the immigration authorities at the port of entry.
Under Executive Order No. 408, bona fide foreign tourists are required to secure a visa to enter the Philippines. A foreign tourist refers to a person, without distinction as to race, gender, language or religion, going to the Philippines for legitimate non-immigrant purposes, such as sightseeing, sports, health, family, training or study, religious pilgrimage, business, cultural and scientific purposes.
The Philippine Immigration Act prescribes two general types of visas: the Non-Immigrant Visa and the Immigrant Visa. There is another type of visa created by the legislative bodies or through presidential proclamations for specific group of individuals called Special Visas.
An immigrant is an alien coming from abroad who decided to reside permanently in the Philippines.
The type of visa to the Philippines that a foreigner needs will depend on the purpose of their visit.
Section 9 of the Philippine Immigration of Act provides for the different types of Non-immigrant Visas, which are:
(a) Temporary Visitor Visa, for a foreigner coming for business or for pleasure or for reasons of health;
(b) Temporary Transit Visa, for a foreigner in transit to a destination outside of the Philippines;
(c) Seaman’s Visa, for a seaman on a vessel arriving at a port of the Philippines and seeking to enter temporarily solely in purpose of his pursuit as a seaman;
(d) Treaty Trade/Investor Visa, for a foreigner in pursuance of a treaty of commerce and navigation between the Philippines and his country;
(e) Diplomatic Visa, for an accredited official of a foreign government recognized by the Philippine Government;
(f) Student Visa, for a student who is at least 18 years of age with sufficient means for his education and support in the Philippines, and who is seeking to enter the Philippines temporarily and solely for the purpose of taking up a course higher than high school; and
(g) Pre-Arranged Employment Visa, for a foreigner with prearranged employment for whom the issuance of a visa has been authorized.
On the other hand, Section 13 of the Philippine Immigration Act provides for the different types of Immigrant Visas, namely:
(a) Quota Immigrant Visa, for citizens of foreign countries which have diplomatic relations with the Philippines and grants Filipino citizens the same immigration privileges. The Bureau of Immigration grants not more than fifty Quota Immigrant Visas in one calendar year for any one nationality; and
(b) Non-Quota Immigrant Visa, which are:
(i) Immigrant Visa by Marriage, for the wife or husband or unmarried child under twenty-one years old of a Filipino citizen, or a child born abroad of an immigrant mother, or woman who lost her Filipino citizenship due to marriage with a foreign national or a woman whose husband lost his Filipino citizenship, or a child born subsequent to the Issuance of an immigrant visa of the accompanying parent;
(ii) Returning Resident Visa, for a person admitted in the Philippines for permanent residence and returning from temporary visit abroad; and
(iii) Returning Former Natural-Born Filipino Citizen Visa, for natural-born citizens of the Philippines who have been naturalized in a foreign country but decided to return to the Philippines for permanent residence.
As for Special Visas, some of those issued by the government include:
(a) Special Investor’s Resident Visa, a non-immigrant visa granted to foreign nationals and their dependents who have shareholdings in Philippine corporations engaged in manufacturing or service, or are listed in the Philippines Stock Exchange;
(b) Special Visa for Employment Generation, a non-immigrant visa granted to foreign nationals and their dependents who employ at least 10 Filipinos in a lawful enterprise or business venture;
(c) Special Non-Immigrant Visa, a non-immigrant visa granted to foreign nationals and their dependents who are employed by regional and/or regional operating headquarters of multinational corporation;
(d) Special Resident Retiree’s Visa, a non-immigrant visa granted to foreign nationals and their dependents who would like to retire in the Philippines; and
(e) Special Employment Visa for Offshore Banking Units, a non-immigrant visa granted to foreign nationals and their dependents who are employed in Philippine offshore units of foreign banks.
Special Investor's Resident Visa (SIRV)
The Special Investor’s Resident Visa, or SIRV, is a special non-immigrant visa that entitles the holder to reside in the Philippines for an indefinite period as long as the required qualifications and investments are maintained. It is issued by the Bureau of Immigration upon endorsement of the Bureau of Investments pursuant to the provisions of the Omnibus Investments Code of 1987.
One of the main objectives of the SIRV is to encourage and attract foreign investments in the Philippines. (E.O. No. 226, as amended)
Any qualified foreigner at least twenty-one years of age may apply for an SIRV.
The applicant must possess the following qualifications:
(a) He must be at least 21 years of age;
(b) He has not been convicted of a crime involving moral turpitude;
(c) He has not been institutionalized for any mental disorder or disability;
(d) He is not afflicted with any loathsome, dangerous or contagious disease;
(e) He is willing and able to invest the amount of at least USD 75,0000.00 in the Philippines; and
(f) He is a holder of a tourist visa with a validity of at least one month. (Article 74, E.O. No. 226, as amended)
The applicant must deposit at least USD 75,000.00 in a Peso Time Deposit account for a minimum period of 30 days and a maximum period of 180 days, either with the Land Bank of the Philippines or the Development Bank of the Philippines.
The applicant will have 180 days from the date of issuance of the probationary visa within which to convert the deposit into an eligible form of investment. Only investments or shares of stock in existing, new or proposed corporations are considered eligible for purposes of the SIRV:
(a) Publicly-listed companies;
(b) Companies engaged in areas listed in the Investment Priorities Plan of the Board of Investments;
(c) Companies engaged in the manufacturing and service sectors.
Ownership of shares of stock in corporations engaged in wholesale trading, and investments in condominium units or partnerships, are no longer considered eligible for purposes of the SIRV.
The applicant shall be required to file a letter with the Incentives Administration Service of the Board of Investments (BOI), stating his intention to apply for an SIRV. The BOI shall then prepare an endorsement letter addressed to the accredited depositary bank, which the applicant will then submit to the bank. The accredited depositary bank will provide the applicant with instructions for the remittance of the USD 75,000.00.
The benefits of the SIRV shall extend to the applicant, his/her spouse, and his unmarried children below twenty-one years of age.
No. An SIRV holder is not required to reside in the Philippines. As long as his/her investments subsist in the Philippines, and he/she files the required reports to the BOI, he/she will maintain the privilege of indefinitely staying in the Philippines.
Special Resident Retiree's Visa (SRRV)
The Special Resident Retiree’s Visa, or SRRV, is a special non-immigrant visa issued by the Bureau of Immigration (BI) under the Retirement Program of the Philippine Retirement Authority (PRA) to foreigners and overseas Filipinos. It entitles the holder to multiple-entry privileges with the right to stay permanently or indefinitely in the Philippines.
The Philippine Retirement Authority is a government-owned and controlled corporation, and an attached agency of the Department of Tourism. The PRA is mandated to attract foreign nationals and former Filipino citizens to invest, reside and retire in the Philippines, the objective being to accelerate the socio-economic development of the country, contribute to the foreign currency reserves, and provide qualified applicants with an attractive retirement package.
Briefly, and subject to other government regulations, the PRA offers the following types of SRRVs:
(a) SRRV Smile, for active/healthy principal retirees who are at least 35 years old, and who are willing to maintain their visa deposit of USD 20,000.00 in any of the PRA designated banks;
(b) SRRV Classic, for active/healthy principal retirees who are willing to use their visa deposit of USD 10,000.00 or USD 20,000.00 if 50 years old and above, or USD 50,000.00 if 35 to 49 years old, to purchase condominium units or enter into a long term lease of a house and lot;
(c) SRRV Human Touch, for ailing principal retirees 35 years old and above, who are shown to have medical/clinical needs and services. In this option, the retiree only needs to have a visa deposit of USD 10,000.00, a monthly pension of at least USD 1,500.00 and a health insurance policy acceptable in Philippine hospitals;
(d) SRRV Courtesy, for former Filipinos 35 years old and above, and foreign nationals 50 years old & above, who have served in the Philippines as diplomats, ambassadors, officers/staff of international organizations, and who are willing to make a visa deposit of USD 1,500.00; and
(e) SRRV Expanded Courtesy, for foreign nationals 50 years old & above, who are retired armed force officers of foreign countries with existing military ties and/or agreement with the Philippine Government receiving a monthly pension of at least USD 1,000.00, and who are willing to make a visa deposit of USD 1,500.00.
The term “former Filipinos” refers to Filipinos who have gone abroad and have been naturalized or granted citizenship in another country. (PRA Circular No. 16, s. 1989)
Yes, provided that they are accompanying or would be accompanying the SRRV holder in the Philippines, an SRRV holder’s spouse and his legitimate or legally adopted unmarried children under twenty-one (21) years old may also be given indefinite SRRV privileges.
There are various privileges accorded to an SRRV holder. Some of them are :
(a) Special non-immigrant status with multiple entry or exit privileges;
(b) Exemption from the Philippine Bureau of Immigration Alien Certificate Registration Identification Card (ACR-I Card);
(c) Exemption from custom duties and taxes for one-time importation of household goods and personal effects worth up to USD 7,000.00;
(d) Exemption from the Student’s Visa or Study Permit requirement;
(e) If the retiree has not stayed in the Philippines for more than one (1) year from last date of entry, exemption from the travel tax;
(f) Access to Greet and Assist Program at selected Philippines airports;
(g) Free subscription to the PRA Newsletter;
(h) Discount privileges from PRA accredited merchant partners;
(i) Free assistance in securing documents and transacting with other government agencies; and
(j) Entitlement to PhilHealth benefits and privileges.
An SRRV holder may choose to invest his/her required deposit through:
(a) The purchase, acquisition and ownership of a condominium unit;
(b) A long-term lease of a house and lot, condominium unit or townhouse for a period not shorter than twenty (20) years;
(c) The purchase, acquisition and ownership of golf or country club shares.
Yes, as long as it such activity is not restricted or prohibited by the Philippine Constitution, existing laws, or by Foreign Investment Act of 1991. A foreigner is allowed to work in the Philippines provided that he/she secures an Alien Employment Permit (AEP) from the Department of Labor and Employment.
Special Visa for Employment Generation (SVEG)
The Special Visa for Employment Generation, or SVEG, is a special visa issued to a qualified non-immigrant foreigner who shall actually employ at least 10 Filipinos in a lawful and sustainable enterprise, trade, or industry. Qualified foreigners who are granted an SVEG are considered special non-immigrants with multiple entry privileges and conditional extended stay, without need of prior departure from the Philippines. (Section 1, E.O. No. 758)
Any qualified non-immigrant foreigner who shall actually employ at least 10 Filipinos in a lawful and sustainable enterprise, trade or industry may apply for the SVEG, provided he/she complies with the following conditions:
(a) The foreigner shall actually, directly or exclusively engage in a viable and sustainable commercial investment/enterprise in the Philippines, exercises/performs management acts, or has the authority to hire, promote and dismiss employees;
(b) He/she shows a genuine intention to indefinitely remain in the Philippines;
(c) He/she is not a risk to national security; and
(d) His/her commercial investment/enterprise must provide actual employment to at 10 Filipinos in accordance with Philippine labor laws and other applicable special laws. (Section 2, E.O. No. 758)
The Filipino employees must be full-time or regular employees, and have a managerial, executive, professional, technical, skilled or unskilled position in a business activity, investment, enterprise or industry in the Philippines. Housekeepers, household workers, domestics, cooks, guards, caretakers and alike are not included
The benefits and privileges granted to an SVEG holder extend to his/her spouse and dependent unmarried child/children below eighteen years of age, regardless whether legitimate, illegitimate or adopted. (Section 1, E.O. No. 758)