The Magnificent Atty. Perez

Can a Gay Marriage in NY be recognized in the Philippines? July 10, 2011

Posted by Janjan in Idiocy, Legally Opinionated and Jurisprudent.
Tags: bigamy, gay marriage, legal opinion, magnificent atty. perez, philippines
5 comments

Dear Magnificent Atty. Perez,

Greetings from the city that never sleeps!  I was googling for help about my problem when I came across your site and the problem about the lovely “Maricar”.  After reading your advice to Fazouk, I knew you would give the right advice for me.  You see, my problem is like this:  a few months ago, I accepted a contractual job as a wrangler for longhorn cattle over at the lovely mountains of Wyoming.  I was assigned to guard them together with a macho guy from the Philippines named Sonny.  It was a tough job full of problems with wolves and tough weather, and in the course of a few weeks, Sonny and I bonded and became very close with each other.  One thing led to another, and soon Sonny and I were sharing the same sleeping bag, if you know what I mean.

Over time, Sonny and I realized that we were in love.  So when New York approved its gay marriage act on June 24, 2011, Sonny and I quit our jobs and flew to New York where we both tied the knot.  We had a short honeymoon period at the Big Apple until Sonny finally told me his big secret.

I still remember that day like it was only yesterday.  I was cooking breakfast in our small apartment in Soho, and both Sonny and I had bad hangovers from partying the night before.  Sonny brewed me a cup of strong black coffee and asked me to sit at the breakfast corner.  “Mike,” he told me.  “Mike… I can’t live a lie anymore.”

I put down the skillet, turned the grill off and sat down.  I hurriedly gulped the coffee despite its scalding heat because I knew I needed to be sober for his news.

“Mike.. you’re a good man, a great man,” Sonny said, not being able to look me in the eye.  He kept fidgeting, his fingers tearing away bits and pieces from the paper napkin.  “Sometimes, I think you’re too good for me, and in a lot of ways, you are.”

Sonny put the paper napkin down and looked at me, face to face.

“Mike.  I’m coming out of the closet.  I’m…. I’m….”

For some reason, I couldn’t keep the tears out of my eyes when Sonny plunged the knife deep into my heart.

“Mike, I’m STRAIGHT!”

And just like that Sonny destroyed all the happiness I have ever known.   As if on cue, a bitter country song started playing on the radio, about a cowboy riding alone on a strange horse at midnight, headed to Omaha.

“Forgive me Mike… I was confused… I was horny… I didn’t know what to do.  No, no, no… Mike, I’m sorry.  I was just using you to get a green card.  You see, I’m married in the Philippines.  I have a wife named Christine and three sons named Mark, Fruto and Michal.  I needed to give them a good life, a better life than what we have back in our country and you were my ticket out of poverty…”

At that point, I stormed out of the room, overturning all our meager possessions.  I don’t know how I was able to cross the street in the middle of traffic, with my tears obscuring my vision, but I walked out of Sonny and his lying, cheating ways and went to have fun and stay at the YMCA where I got myself clean.  Where I had a good meal.  Where I could do whatever I feel.

Someone advised me that in the Philippines, contracting a second marriage while your first marriage was existing is considered a crime of BIGAMY.

I want to get back at Sonny, your Magnificence.  I want to make him hurt like I hurt.  I want to make him know all there is to know about the crying game.  I want to put him into prison where unwashed fat men with badly-drawn tattoos will ass-rape the straightness out of him until Sonny comes back howling on his knees, asking me for forgiveness, promising to forget about his family back in the Philippines.

I’ve been told that you are evil and would not hesitate to make other lives miserable for an insane amount of money.  Well how does One Million Pesos for a criminal case sound?  Call me.

Truly yours,

Mike

Dear Mike,

First of all, allow me to extend my sympathies for the pain that your former lover inflicted on you.  And secondly, let me correct a common misconception about me.  I’m not the kind of lawyer who inflicts pain, misery and suffering to other people for money.

I’m the kind of lawyer who would do it happily for free.

But that being said, I gladly accept your One Million Pesos.  It will go a long way for my Pajero sinking fund.  Unfortunately, I am only a lawyer and not a bishop.  Nobody will give me an SUV for free.

Let’s focus on the problem at hand.

You certainly gave me a very interesting problem to work on, and I would like to accept it, if only to have a landmark Supreme Court ruling with my name on it.  You see, like you’ve read in the Maricar problem, the Philippines does not recognize gay marriages celebrated in our country, since it is contrary to our Family Code, which defines marriage as:

A special contract of permanent union between a man and a woman entered into in accordance with the law for the establishment of conjugal and family life.

And that the necessary requirements for a valid marriage is:

1) Legal capacity of the contracting parties who must be a male and a female, and;

2) Consent freely given in the presence of the solemnizing officer.

However, the difference between your situation and that of the Maricar one is that your marriage was celebrated OUTSIDE the Philippines while Fazouk and Maricar intended to get married in the country.  In this case, Article 26 of the Family Code, which provides that:

All marriages solemnized outside the Philippines in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and 38. X x x

Those articles mentioned in Art. 26 consider the following marriages as null and void:

(1)    Those contracted by any party below eighteen years of age even with the consent of parents or guardians;

(2)    Bigamous or polygamous marriages;

(3)    Those contracted through mistake of one contracting party as to the identity of the other;

(4)    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

(5)    Incestuous marriages;

What this means, Mike, is that the Philippines is obliged to recognize the validity of a gay marriage celebrated in New York, where such marriage is considered valid and binding.  Unfortunately, your marriage with Sonny is considered null and void, not because it’s a gay marriage, but because it’s a bigamous marriage, since Sonny was previously married here in the Philippines.

However, nonwithstanding the fact that Sonny’s second marriage is void in the Philippines, he did however contract a second marriage, which makes him liable for the crime of bigamy.  The Revised Penal Code defines bigamy as:

The penalty of prision mayor shall be imposed upon any person who shall contract a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings.

The fact that gay marriages celebrated in the Philippines are considered void, I believe, has no bearing on the prosecution of the second case.  This is supported by the Supreme Court, in the case of Jarillo vs. People of the Philippines (G.R. No. 164435, September 29, 2009), where it was ruled that:

For the very same reasons elucidated in the above-quoted cases, petitioner’s conviction of the crime of bigamy must be affirmed.   The subsequent judicial declaration of nullity of petitioner’s two marriages to Alocillo cannot be considered a valid defense in the crime of bigamy.  The moment petitioner contracted a second marriage without the previous one having been judicially declared null and void, the crime of bigamy was already consummated because at the time of the celebration of the second marriage, petitioner’s marriage to Alocillo, which had not yet been declared null and void by a court of competent jurisdiction, was deemed valid and subsisting.  Neither would a judicial declaration of the nullity of petitioner’s marriage to Uy make any difference. As held in Tenebro, “[s]ince a marriage contracted during the subsistence of a valid marriage is automatically void, the nullity of this second marriage is not per se an argument for the avoidance of criminal liability for bigamy.    x   x   x   A plain reading of [Article 349 of the Revised Penal Code], therefore, would indicate that the provision penalizes the mere act of contracting a second or subsequent marriage during the subsistence of a valid marriage.”  (Emboldened and underscored for emphasis)

So, if your question is whether your marriage to Sonny is valid in the Philippines, unfortunately, the answer is no, not because it’s a gay marriage, but because it’s a bigamous one.  But if you’re asking if you could put Sonny to jail for bigamy, yes, definitely, I think you could, and for a million pesos and my name in the SCRA, I will help you on that issue.  Besides, if you put Sonny to jail, that would mean his wife would be lonely and would need some moral support.  And I also happen to own a sleeping bag.

I hope that answers your question.  Thank you for your query, Mike, and I hope you will still find love, even when you look in all the wrong places.  Until then, I remain:

                                  The Magnificent Atty. Perez

-oO0Oo-

P.S.

This post-script is written in addendum to very good arguments raised by my classmate in law school, Atty. Jeffrey Ravelo, who presently teaches public international law.

Atty. Ravelo asked whether or not jurisdiction over the second marriage can be obtained by Phlippine courts, considering that it was celebrated abroad.  He also raised Articles 15 and 17 of the Civil Code which provide:

Art. 15.  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.

Art. 17.  The forms and solemnities of contracts, wills, and other public instruments shall be governed by the laws of the country in which they are executed.

When the acts referred to are executed before the diplomatic or consular officials of the Republic of the Philippines in a foreign country, the solemnities established by Philippine laws shall be observed in their execution.

Prohibitive laws concerning persons, their acts or property, and those which have, for their object, public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country.

Basically, what Atty. Ravelo is saying is that theoretically, because the second marriage was celebrated abroad, therefore, the criminal act was outside of Philippine territory, which is one of the components for the courts’ power to put the case into trial.  Hence, there was no criminal act of bigamy committed because the second marriage was done outside the scope of Philippine criminal law to enforce.  This is supported by Article 2 of the Revised Penal Code which provides:

Except as provided in the treaties and laws of preferential application, the provisions of this Code shall be enforced not only within the Philippine Archipelago, including its atmosphere, its interior waters and maritime zone, but also outside of its jurisdiction, against those who:

1. Should commit an offense while on a Philippine ship or airship

2. Should forge or counterfeit any coin or currency note of the Philippine Islands or obligations and securities issued by the Government of the Philippine Islands;chan robles virtual law library

3. Should be liable for acts connected with the introduction into these islands of the obligations and securities mentioned in the presiding number;

4. While being public officers or employees, should commit an offense in the exercise of their functions; or

5. Should commit any of the crimes against national security and the law of nations, defined in Title One of Book Two of this Code.

Note that the second marriage does not fall within any of the situations allowing for extra-territorial jurisdiction of Philippine criminal laws.

Hence no crime of Bigamy has been committed by Sonny.

There are sometimes when yes, I reach the limits of my magnificence, and I have to defer to the wisdom and sound reasoning of a brilliant legal mind.  So to my companyero and (I’m proud to add), classmate in law school, Atty. Ravelo, thank you very much for your input on this matter.  I hope this discussion will someday be resolved in an actual Supreme Court case.