Okey. Some people asked me to comment about the annulment case filed by Kris Aquino against former hubby, James Yap. The latest development is Kris wants Baby James surname changed from Yap to Cojuangco-Aquino. Is this possible?
When Baby James was born, there was a presumption of legitimacy, that since Kris and James got married, and Baby James was the product of such a union, his birth status was presumed legitimate. The very fact that the alleged father, James Yap, signed his birth certificate shows that Baby James earned the right to bear his father's surname, which is customary in Philippine civil law. (Legitimate children bear the surname of their legitimate father).
Baby James' status rests in the legitimacy of the marriage between Kris and James Yap. The question now is---is the marriage of Kris and James legal? Kris claims that it was not. James countered and said it is. Let us review both sides' argument.
Kris claims that their first marriage certificate states that they were married in Quezon City and the civil ceremony was officiated by Mayor Sonny Belmonte. However, it turned out, it was not Belmonte who officiated the marriage, but a Protestant minister.
Under our Family Code, for a marriage to be legitimate, it has to follow certain requisites, namely:
1. The people involved in the marriage are legally permitted to enter into contractual obligations, since a marriage is a contract.
2. The marriage was solemnized by someone authorized by law or by custom
3. The marriage took place within the period allowed by law, as stated in a marriage license procured prior to the marriage ceremony.
4. The people involved in the marriage are not barred by law to enter into it. Meaning, they are not married to some one else prior to the marriage.
Kris alleged that the solemnizing officer was not authorized by law to marry them, since the alleged pastor was actually a Protestant preacher. Under the law, in order for a minister to be allowed to marry someone, he has to be the head of the religious group or sect where the couple belonged. Kris and James are Catholics. Therefore, the preacher has no authority over them.
Some civil law professors say, this is not a very strong case to grant an annulment since this is a mere irregularity. Others, however, say, it is material and could affect the outcome of the marriage, since the marriage should be solemnized by someone cloaked with authority.
Granting, however, that this civil ceremony was a sham, then, says James Yap, it was actually cured by the second marriage contracted between him and Kris shortly afterwards. Now, it remains to be seen if that second marriage was contracted with a valid marriage license. The first marriage license for the first marriage does not apply to the second marriage ceremony, since under the law, a license applies only to one marriage. If both did not secure a marriage license for the second marriage ceremony, it is deemed void ab initio or void from the very beginning.
Now, what if the marriage between Kris and James was indeed, void from the beginning, what is the effect of such a marriage to the birth status of Baby James?
Of course, Baby James is deemed illegitimate and must bear the surname of the mother, until the age of 18 years old, where he is then asked if he wants to bear the surname of his father. Under the law authored by Senator Ramon Bong Revilla, illegitimate children now enjoy the same rights as legitimate children, and one of them, the right to bear the surname of his biological father. The father should consent to it by affixing his signature in the birth certificate of the child. If there is no consent, then, the child bears the surname of his legal custodian, which, in this case, is his biological mother until he reaches maturity. When he reaches maturity, it is all up to him if he chooses to retain using his mother's surname or elect to change it and bear the surname of his father.
Now, how about the regime of property governing the relationship of Kris and James? Does the absolute conjugal property exists in their case or that of the regime of property gains?
Under our Civil Code, the right property regime that governs the marriage of Kris and James is that of co-ownership property regime realized under Article 147 of the Family Code. Under such a property regime, all the fruits of their labor during the time of their marriage shall be presumed to have been jointly contributed.
If reports are true that during the marriage between Kris and Yap, more than 200 million pesos were generated from the said relationship, then, the amount will actually be partitioned in equal shares, 50% or 100 million to Kris and 100 million to James Yap. The partition of the said property shall commence shortly after the grant of a court decision annulling their marriage. That is, if there is no pre-nuptial agreement between the two.
GRanting, for the sake of argument, that there was a pre-nup, will this govern the property relations of the two during the marriage? No. A pre-nup takes effect only if there is a consummation of a marriage. Since there was no consummation, and the presumption of law is that there was cohabitation without the benefit of marriage, then, Article 147 of the Family Code applies. Kris has to agree to partition the property regime between her and James Yap.