Jester Kutch A.

Olayta Section 1-A Legal Research
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Republic of the Philippines
REGIONAL TRIAL COURT
Manila City



KARENINA B. LAGO
Plaintiff

-versus-

DARIUS J. SANTOS,
Defendant


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MEMORANDUM FOR THE PLAINTIFF

Plaintiff, by the undersigned counsel, most respectfully submits this memorandum as follows:


NATURE OF THE CASE

This case is about the separation of the properties of a common law couple, herein plaintiff and
defendant. The relationship of the couple have been strained and the now the plaintiff have
executed this memorandum to protect her rights over her property and hold the defendant liable
for the felony committed against the plaintiff.



STATEMENT OF FACTS

1. The plaintiff is a 38 year old accountant and previously married which had a common
law relationship with herein defendant, a doctor in one of the hospitals served by her
auditing firm.

2. The plaintiff has a pending annulment case before the Makati Regional Trial Court
against her former husband, Joshua T. Dy.

3. On the other hand, the defendant has had two previous marriages: the first one was with
Carol Exconde which he married in 1988 but was separated because of a third party in
1992. The annulment case filed by the wife was dismissed by the court due to her
disinterest to pursue the case.
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4. The second wife, Milette Torres, was married by the defendant to save her face in the
company she’s working for. They got married on January 5, 2001 in the vicinity of the
Quezon City Hall.

5. The plaintiff and the defendant already had an affair before Millette and Darius got
married. As a result, Millette harassed the couple, she filed the following charges: an
annulment case against the defendant which has been granted due to lack of marriage
license; a administrative case before the PRC where they were judged as guilty for
dishonorable conduct and is appealed before the Commission; and lastly, a criminal case
for bigamy which has just been recalled after being put on hold.

6. The plaintiff and defendant had kids during their relationship: Coleen in 2003, Cora in
2004 and Carlo in 2009.

7. The Couple acquired properties during their common law relationship. The defendant
acquired a lot in Alabang Hills in 2003 where he claimed to have placed the plaintiff as
the co owner. He also bought second hand BMW, which he sold to get a Toyota Innova;
a Motorcycle; appliances which he paid out of his own personal money; and a Ford
Escape placed in the name of the plaintiff and paid out f their pooled resources. On the
other hand, the plaintiff had owned shares of stocks in san Miguel Corporation, a laptop,
a 23 inch Bravia flat screen TV and a canon EOS camera

8. Three months ago, they had a nasty fight, this has caused the defendant to leave the
house. However the defendant only left in August. Prior to this, the defendant had bought
an armalite which he brandished in front of the wife. In addition to that, the wife had
suffered 3 incidents of physical violence which their children had witnessed.




ISSUES

The issues to be resolved in this case are the following:

1. Whether the properties acquired by the two during their cohabitation are governed by
Article 148 of the family code.
2. Whether the defendant is liable for theft for taking in possession properties that were
solely owned by the plaintiff







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ARGUMENT AND DISCUSSION


THE PLAINTIFF CONTENDS THAT HER PROPERTIES NOT GOVERNED BY ARTICLE
148 WHICH ARE TAKEN BY THE DEFENDANT CONSTITUTED THE CRIME OF THEFT

These properties of the parties are to be governed by the Article 148 of the family code which
provides that

In cases of cohabitation not falling under the preceding Article, only the properties acquired by both of the
parties through their actual joint contribution of money, property, or industry shall be owned by them in
common in proportion to their respective contributions. In the absence of proof to the contrary, their
contributions and corresponding shares are presumed to be equal. The same rule and presumption shall
apply to joint deposits of money and evidences of credit
1


In the case at bar, the parties case does not fall under article 147 which only talks about couples
who are capacitated to marry each other or are under a void marriage. The plaintiff is not
capacitated to marry the defendant since there is a prior subsisting marriage with Joshua Dy
which has a pending annulment petition. The parties also did not contract a marriage that would
have been void since it would be bigamous. Given this circumstance, the property relation
between the common law couple is governed by article 148.

Of the properties acquired during their cohabitation only the Ford Escape falls under the co
ownership of the couple. The other properties form part of the separate property of the defendant
since it was his resources that were used in purchasing them. On the contrary, the shares of
stocks, laptop, camera and TV belonged solely to the plaintiff.

The Ford Escape was acquired through the pooled resources by the parties. This was obtained
through the pooled resources by the parties and is therefore co owned by them in accordance to
the proportion of their contribution. The rest of the properties were brought into the cohabitation
on their own money and labor. Thus, the other party cannot take the property of another without
the permission of the owner as this would constitute the crime of robbery.

Going now to the issue of whether the defendant is liable for theft

As discussed earlier, the property relations that governed the parties is that of co-ownership. This
would only apply to those that they have acquired by the joint resources of the couple. For the
rest of the properties, they are governed by complete separation of properties. The defendant
took the properties of the plaintiff without the latter’s consent.






1
FAMILY CODE, Article 148
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The crime of theft is defined by Article 308 of the Revised Penal Code which provides that:

Art. 308. Who are liable for theft. — Theft is committed by any person who, with intent to gain but without violence
against or intimidation of persons nor force upon things, shall take personal property of another without the latter's
consent
2

The defendant took possession of the properties of the plaintiff without the use of violence in
taking them. Therefore it cannot qualify as robbery since there was no use of violence or
intimidation in carrying out the felonious act. The defendant, however, took the properties of the
plaintiff without her consent which would constitute the crime of theft.

IN relation to that, the properties taken by the defendant are governed by the regime of complete
separation of property. Article 145 of the family code states that:

Art. 145. Each spouse shall own, dispose of, possess, administer and enjoy his or her own separate estate,
without need of the consent of the other. To each spouse shall belong all earnings from his or her profession,
business or industry and all fruits, natural, industrial or civil, due or received during the marriage from his or
her separate property
3


From the foregoing provision, the plaintiff then is given the rights over her properties
without the consent o interference of her husband. And the act committed by the husband
infringes this right of the plaintiff over her own separate properties.

In conclusion, the defendant should be held guilty of the crime of theft and should be meted
out with the appropriate penalty proportionate to the act committed against the plaintiff.




PRAYER

Wherefore, from the foregoing premises, it is most respectfully prayed that this honorable
court render a judgment convicting the defendant for the crime of theft for stealing the
plaintiff’s personal property.

Other Reliefs, just and equitable under the premises, are likewise prayed for

Quezon City for Manila City, Philippines, October 22, 2011



22
REVISED PENAL CODE, Art 308
3
FAMILY CODE, Article 145