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  Republic of the Philippines SUPREME COURT Manila City SAM JULIAN represented by TESSIE JULIAN, Plaintiff -versus- CIVIL CASE NO. L  –  144234  For : Support with support pendente-lite REY GUZMAN Respondent   x-------------------------------------------------------------------------------------------------x MEMORANDUM COME NOW PLAINTIFF, through the undersigned counsel, unto this Honorable Supreme Court most respectfully submit and present this Memorandum in the above-titled case and aver that: THE PARTIES 1.   Plaintiff Sam Dela Cruz as represented by Tessie Dela Cruz, of legal age, Filipino, residing at 1234 Balik Balik Street, Baguio City, where she may be served with legal processes and notices issued by this Honorable Court; 2.   Defendants Abe Dela Cruz and Rey Guzman, both of legal ages,, Filipinos, resident of Baguio City and Nueva Ecija, respectively and may be served with legal processes and judicial notices thereto. FACTUAL BACKGROUND Two years ago, Abe (a lawyer) and Tessie (a nurse) were introduced to each other by a mutual friend. Tessie was a single parent with a two-year old son named Sam. She was a nurse at the Baguio General Hospital. Abe and Tessie were married last year . Prior to their marriage, Tessie and Abe owned separate homes. Before the wedding ceremony, Tessie sold her home and kept the proceeds of the sale in a separate bank account.  Tessie and Sam moved into Abe’s home. After they moved in, she and Abe remodeled Abe’s house. The remodeling efforts increased the value of the home by P500, 000.00 Immediately after the marriage, Abe, with Tessie’s consent filed a petition to adopt Sam. Sam’s birth certificate identified Rey as the Father. When Sam was a baby, Rey denied paternity and left the Philippines and his whereabouts were unknown to Tessie, The court granted the adoption. Once the adoption was complete, Tessie quit her job to become a housewife at Abe’s insistence. Abe recently decided that he no longer wanted to be married. Abe told Tessie to leave, but that he wanted custody of his adopted son, Sam. Tessie, however, took Sam and moved in with her mother, Tessie applied for a position at BGH where she worked prior to her marriage to Abe, but all the positions were taken. The hospital promised to let her know if a position becomes available. In the meantime, Tessie stayed home to take care of Sam. Abe soon filed for declaration of nullity of marriage under Article 36 of the Family Code. Abe seeks half of the proceeds from the sale of Tessie’s home. Abe requests that he be allowed to keep his home worth approximately P1.5 million, including the increase in the value after remodeling. Abe also requests that he be allowed to keep the following property: The proceeds of a joint savings account totaling P100, 000 and some stocks he acquired prior to the marriage. Abe also seeks sole custody of Sam. Shortly after the filing of Abe’s petition, Rey returned. He ha s informed Tessie that he never should have left. With Tessie’s consent, a paternity test is performed that establishes that Sam is indeed Rey’s son. Rey argues that the adoption was not valid and he intends to assert his paternity rights. THE ISSUES (1)   How will be the properties be distributed? (2)   Is the adoption of Sam by Abe valid? (3)   Who should be granted the custody of Sam? (4)   Does Tessie have a claim for Child support from Abe or Rey or Both? CONCLUSION (1) There will be no properties to be distributed since the marriage of Tessie and Abe is not yet annulled, their ties as a lawful wedded couple still binds them. In order that their properties will be distributed, the court must grant Abe’s petition  in order that dissolution of properties will prosper. But in case the Annulment of Tessie to Abe is granted by the court, the scenario will  not be the same there will be a distribution of property. Since there is no marriage settlement and the annulment case is on the basis of Article 36 the distribution of property will be on Absolute Community.  Article 36 states that : A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization. Tessie and Abe do not have any marriage settlement in the case stated above. The Absolute Community will govern the distribution of property upon newly wedded couples who doesn’t have marriage settlemen t. Thus, married couples who don’t have any marriage settlement will be governed by Article 75. Article 75 of the Family Code stated as follows: “    Art. 75.  The future spouses may, in the marriage settlements, agree upon the regime of absolute community, conjugal partnership of gains, complete separation of property, or any other regime. In the absence of a marriage settlement, or when the regime agreed upon is void, the system of absolute community  ”    This is one of the regimes or systems of property relations between the spouses and the default system in the absence of a prenuptial agreement or when the agreed system is null and void. This system commences at the precise moment that the marriage is celebrated, and any stipulation for the commencement of the community regime at any other time is void. In a nutshell, the husband and the wife are considered as co-owners of all properties they bring into the marriage (those that they owned before the marriage), as well as the properties acquired during the marriage, except for certain properties express excluded by law (listed below). The rule on co-ownership applies in all matters not provided under the Family Code. (Retrieved from: JIP law by Atty. Fred) (2) The adoption of Sam by Abe is invalid.  RA 8552 does provide that an unwed mother can adopt her own child to raise the child’s status to that of a legitimate child. But the biological father’s consent is necessary. The issue of consent most often arises when the mother gets married and her husband wants to adopt her child. In this situation, courts require that the prospective adopter present the notarized affidavit of consent of the biological father. Under Section 9 (b) of RA 8552 states that the written consent of the biological parent(s) is necessary in order that such adoption would be valid. And Under Section 7(ii) of RA 8552, “that  it should be the LEGITIMATE son/daughter of his/her Filipino spouse to be adopted and not the ILLEGITIMATE son/daughter. “  (3) The custody of Sam will be granted depending on her age. If Sam is below 7 years of age, then she will be automatically in the custody of her mother except upon compelling circumstances. 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 mother’s loving care. Article 213 of the Family Code provides that “child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise.” This is more pronounced in case of illegitimate children, as the law expressly provides that illegitimate children shall be under the parental authority of their mother. Compelling circumstances such as: Instances of unsuitability are neglect, abandonment, unemployment and immorality, habitual drunkenness, drug addiction, maltreatment of the child, insanity, and affliction with a communicable illness. Negligent and careless failure to perform the duties of parenthood is a significant element of abandonment, regardless of actual intention. A strong basis for a finding of the parent’s abandonment of his or her child is found in the case where the parent has left the child permanently or indefinitely in the care of others, given it to another, or surrendered it entirely. (5) Does Tessie have a claim for Child support from Abe or Rey or Both? None. Sam has the right to get such support to his biological father Rey. Since the adoption of Abe to Sam is invalid, therefore Sam can’t ask for support to Abe. Under Article 194 of the Family Code, Support comprises everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping with the financial capacity of the family. The education of the person entitled to be supported referred to in the preceding paragraph shall include his schooling or training for some profession, trade or vocation, even beyond the age of majority. Transportation shall include expenses in going to and from school, or to and from place of work. (290a) Tessie as the mother of Sam can represent her daughter to file a petition of support in an open court in order to get support from her father Rey. Tessie and Rey are not legally married, therefore only their daughter Sam has the capacity to ask for support from her biological father.

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Jul 23, 2017
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