Bumohya Law Offices
24 Puso ng Baguio
Session Road, Baguio City
October 29, 2016
Mrs. Letty de Vera:
24 Purok 5 Gibraltar
Baguio City
Re:
Declaration of Nullity of Marriage with Full Custody of Children and Possession
of Property
Dear Mrs. De Vera:
You requested legal opinion from me regarding a possible nullity of marriage,
full custody of your children and possession of the whole house and lot.
My answer is yes. Due to your husbands marital infidelity and bigamous
marriage, he is unable to execute the essential obligations of marriage, that is, the
conjugal act, the community of life and love, the rendering of mutual help, and the
procreation and education of offspring. He is psychologically incapacitated to carry
out the metes and bounds of marriage. He is also unable to observe mutual love,
respect and fidelity, for love, sexual comfort and loyalty to one another are the
basic postulates of marriage which is provided by the Family Code.
Regarding the matter of full custody for your children, the law grants it to the
mother if they are under seven years of age; otherwise, the choice must be given
by the children upon proceeding of the case.
Lastly, your prayer for the possession of the house and lot is tenable. You are
the aggrieved party and the Civil Code provides preference to the aggrieved spouse
over disputed properties.
In your letter, you got married on December 25, 2001. You stated that you
learned about his illicit affair with your neighbor, Pacita, and even married her while
you were in Australia. Marrying while the first marriage is still valid make the second
one void. This is clearly a manifestation inability to carry out marriage and family
obligations. Even a not highly educated person would know that multiple marriages
is against the law and a root cause of family woes. He unable to see the
consequences of his acts that renders him psychologically incapacitated.
You begot two children; on my calculation, they must be below 15 years of
age. Under the Family Code, the general rule is that a child under seven years of
age shall not be separated from his mother, which is based on the basic need of a
child for his mothers loving care. If they are over seven years old, the law grants
them the right to choose as who among the parents they want to be with. Given the
facts that your husband had been engaging in acts destructible to the family, your
children might be choosing you over him.
You also acquired a house and lot in Baguio City. It is a conjugal property and
generally, upon the dissolve of marriage, it will be given to both of you equally but
in the case that if one of the spouses contracted the marriage in bad faith, his or her
share in the property is forfeited in favor of the children or innocent spouse, as
provided by the Family Code. You are the aggrieved party and chances of you
getting possession of the property is high. The law grants preferential option to the
spouse who is in good faith.
Based on the facts above, to dissolve your marriage, I recommend you to file
a case for Absolute Nullity of Marriage on the ground of psychological incapacity.
Based from cases decided on for years, psychological incapacity may be hard to
prove so I also recommend you to file a case of Violation of RA 9262 or the AntiViolence Against Women and Their Children Act of 2004 for the psychological
violence you have been through. RA 9262 defines psychological violence as: acts
or omissions causing or likely to cause mental or emotional suffering of the victim
such as but not limited to intimidation, harassment, stalking, damage to property,
public ridicule or humiliation, repeated verbal abuse and marital infidelity. It
includes causing or allowing the victim to witness the physical, sexual or
psychological abuse of a member of the family to which the victim belongs. This
will give more merits to the case.
Furthermore, a case of bigamy may also be filed for the marriage he
contracted with Pacita. This is to render their marriage void and to sanction them to
legal consequences of their acts.
I hope this is helpful, and would be happy to discuss this matter with you
further. Please feel free to call my office at (718) 340-4200 if you have questions, or
would like to set up a time to meet.
Very truly yours,
Atty. Jovilyn M. Bumohya
Legal Counsel
