Q. My cousin hails from Cebu Philippines with his five children. He and wife were married in civil and Catholic ceremonies. In the later part of their marriage, he found out that his wife was unfaithful. As a result they got separated.
My cousin’s father in law begged him to take his daughter back so he did out of respect.
Later the wife secretly applied for a visa to Canada. He only found out after it was approved. My cousin extended all out assistance to the wife in terms of cooperation and financial support.
Finally, the wife was able to leave the Philippines with her family in June 2006. However, after three (3) years of working in Canada, the wife informed my cousin that she did not want to return to the Philippines to live with him. Since then they had stopped communicating.
However, few months back, the wife suddenly contacted her husband. She wanted that her two minor sons, 12 years and 8 years old to join her in Canada. My cousin refused as well as the two minor children.
The couple has a property that they acquired during their marriage but it was only the husband who paid for it through salary deduction. Now my cousin wants to sell it. He’s seeking for a Power of Attorney from her to sell the property.
As shown in the land title, the property is registered in his name although it says that he is married indicating the name of the wife. Now, his wife’s Attorney in Cebu told him that his wife had already signed the Special Power of Attorney but she is requesting that her children be allowed to come to her to Canada in exchange of the power of Attorney.
The two sons do not want to go to their mother in Canada and prefer to be with their father in the Philippines.
My cousin heard from a friend that his wife passed the Canadian Registered Nursing Exam and is now a permanent residence of Canada.
The questions:
1. Can his wife who abandoned the children and the family get her two minor sons without the father’s written consent?
2. Is there a means in Canadian Law for her to get her two minor sons without the written consent of the father and with the children not wanting to go?
3. If he sells his property, can his wife go after her share, what percent of the sale is she entitled to?
Their last contact was sometime in July last year and it was an exchange of bitter and unprintable words.
Your advice, opinion and comments in this case are highly appreciated. Thank you very much and warmest regards to you & family, for and in behalf of my relative in Bicol.
Ans.
1). Can his wife who abandoned the children and the family get her two minor sons even without the father’s written consent?
No. Parental authority of minor and unemancipated child is vested to jointly by law to both parents. In case of disagreement, the father’s decision shall prevail unless there is a judicial order to the contrary. (Art.211-Family Code)
2) . Is there any other means in Canadian Law that she can get her two minor sons without the written consent of the father and even if the children do not want to go?
No. In the first place, the mother is still a Filipino citizen, under Article 15 of the Civil Code of the Philippines, “Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon Filipino citizens, even though living abroad.”
Moreover, the parental authority of the children which is jointly exercise by both parents, is now deemed exclusively vested by the father in view of the de facto abandonment of the wife from the conjugal or matrimonial home.
3. If he sells his property, can his wife go after her share, what percent of the sale she’s entitled too?
Under the Family Code, unless agreed in the pre-nuptial agreement, properties acquired during marriage are considered own in common or conjugal properties. Where the property is considered matrimonial or conjugal in character, neither one of the spouse can dispose of the same without the consent of the other.
Thus, if the property is considered as conjugal or matrimonial property, each spouse is entitled to one-half(1/2) thereof subject to allowance or provision for the presumptive legitime (Share of inheritance of Children) under Art.51 of the Family Code.
However, the law provides that when there is separation-in-fact or where a spouse has abandoned the other and the whereabouts cannot be determined, and where the consent of the spouse is required for the performance of certain act(s) or such consent(s) is withheld, the spouse present may file a petition in court that he or she be allowed to perform a particular act even in the absence of the other spouse.( Art. 239-Family Code).
The other remedy of the husband is to file a petition for Legal Separation with dissolution of matrimonial property or where evidence warrant, file an annulment of marriage. In both proceedings the court can rule that the husband be granted the sole parental authority over the minor or unemancipated children.( Art. 129-Family Code) and dissolved or liquidate whatever matrimonial or conjugal properties that the parties may have.
Another remedy is for the abandoned husband as the aggrieved spouse to file a petition the court for receivership, for judicial separation of property, or for authority to be the sole administrator of the conjugal property. Under this remedy, the aggrieved husband must established that the other spouse have abandoned him without the intention of returning to the conjugal dwelling.
Under the law, there is prima facie case of abandonment where the spouse left the conjugal dwelling for a period of three (3) months or has failed within the same period to give any information as to her whereabouts and there is no intention of returning to the conjugal dwelling. ( Art.128-Family Code).
Thank you for writing.