Spoils of parental war

It’s okay for honeymoons to be short and sweet, or longer. Some honeymoons last for a few months. It would have been amazing except that some are coterminous with the life of the marriage. The technical marriage may last longer as there are court formalities to end the contractual union, but the actual marriage could be over long before that. What happens to the conjugal properties, and who takes custody of the child are issues that many Filipino couples resolve out of court. Some put their agreement in a written contract.

One such case was consulted with us, unfortunately, after tragedy struck. Many would have analogous circumstances. Armand and Marian, parents of Noy, separated from bed and board due to irreconcilable differences but never got their marriage annulled. Both Armand and Marian found love again, but with other persons. So they decided to formalize their separation to divide their properties and to state who takes care of the child. Both signed this document. The child, now 10 years old, stayed with Armand since their separation years back as Marian needs to be someplace else to be with her new partner. However, while enjoying their separate lives, Armand died of a fatal sickness, leaving Noy to the care of the lola and Armand’s siblings. Ever since the separation, they have cared for Noy as their own, so the adjustment for Noy will hopefully not be as severe.

Armand left properties that included a condominium unit, and a material amount of cash from company-vested retirement benefits and terminal pay. Armand’s family wants to make sure that every property left by Armand is devoted to the support and education of Noy. Can the family of Armand prevent Marian from having access to the assets left by Armand, as well as deny Marian custody of  Noy? My answer may not be quite what you would expect but let’s understand first some of the rules.

Without a prenuptial agreement, a married couple enters into an absolute community of property (i.e., they are co-owners of everything they own and whatever they earn during the marriage). Any agreement to change property relations after the marriage is not allowed by law. In fact, the law does not even allow donations between spouses, except for the usual gifts during occasions. The reason is so that one cannot put influence or pressure on the other to change their marital property regime. The only thing that can change the property relations is annulment or legal separation as decreed by the court. In Armand and Marian’s case, the do-it-yourself separation agreement they entered into would not be binding, but it is not without legal effects.

If in the agreement, Marian waives her rights over the absolute community of the assets in favor of the son, this is an effective donation. This is valid as parents are obligated to support their children anyway. If Marian contests the validity of the agreement, the only way she may be prevented access to the assets will be for Armand’s mother (or if too old, Armand’s sibling) to ask the court to be appointed as guardian and deny Marian parental authority – but how?

Without an annulment or legal separation decree, the mother would remain as the legal guardian, with parental authority that brings with it, authority to administer conjugal properties. The only way to deprive her of all parental authority is to prove in court that she abandoned the child. The earlier separation agreement entered into between Armand and Marian is indeed non-binding but can be crucial evidence of abandonment. It is not a done deal though because abandonment must be proven.

In Sagala-Eslao vs. Cordero-Ouye, the child was entrusted by the widowed wife to the mother of her husband. The widowed wife soon found a new partner and resided in the US. After a few years, now financially capable, she sought to recover custody of her son. The grandmother refused and invoked abandonment, stating that she took good care of her grandson during the three years when his mother was away – she (mother) was not even able to give a candy to her own son. The court said that what the grandmother had was just temporary custody and did not constitute abandonment. The court favored not only the legal right but the natural right of the mother to have custody of the child, especially so that it seems the son will have a better future with the mother who now has more financial means than the grandmother.

The natural right of a parent to custody can be defeated if she is shown to be unfit. In Chua vs. Cabangbang, the mother, who worked in nightclubs, gave up her baby to a couple as she had no means of support. Before the child turned seven, she tries to claim back her child as her means to receive support from the child’s natural father. The court did not award her custody. Even if the couple did not formally adopt the child, they were preferred by the court to continue to have custody of the child because with them, the child would surely be in better hands.

Normally, children who are minors do not have a choice in custody battles. You can understand they are not even allowed to vote until they are 18. If they are not entrusted by law to make a political choice, there’s more reason that they would not be entrusted to make a choice as to who for them is the better parent. This rule, however, stops where the welfare of the child begins.

In the case of Luna vs. Salumbides, the child preferred her surrogate parents over her natural parents because according to her, her natural parents are selfish and cruel who beat her often, and do not care if she likes the food served to her. She said she would kill herself or run away if forced to stay with her natural parents. In this court battle between biological parents and surrogate parents who have not even yet legally adopted the child, the court found that it would be traumatic and it would cause irreparable damage to the child if forced to stay with her biological parents.

So back to Noy – if the mother proves in court her worthiness and that she can provide a better future for her son, she can be given custody. What we cannot discount is the choice of the child and whether the court will find the child’s choice to be consistent with his overall best interest.

I may not relate but perhaps one of the most painful experiences for any child is to be given up by one’s own parent, and maybe just as painful for a parent is to be refused by his own child. Yet probably one of the most remarkable of human experiences is that complete strangers can fill each other’s void, and be there for one another – like real family. It may not be a family created at birth, but anything that true must be created by God.

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Alexander B. Cabrera is the chairman and senior partner of Isla Lipana & Co./PwC Philippines. He also chairs the Educated Marginalized Entrepreneurs Resource Generation (EMERGE) program of the Management Association of the Philippines (MAP). Email your comments and questions to [email protected]. This content is for general information purposes only, and should not be used as a substitute for consultation with professional advisors.