October 3, 2019

Mary Annjelou Montefalcon Legal Writing Activity

Q1. What is an affidavit?

A1.

Noun:
1. A statement that is written and confirmed by oath or affirmation
2. A written report that is signed by a person who swears that the information
included in the document is accurate to the best of their knowledge.

Origin:

Late 1500s Medieval Latin word affidare, which means, he has made an
oath.

An affidavit is a sworn written statement of facts, made under oath,

and under penalty of perjury, that the statements are true to the best of the
affiant’s knowledge. The person making the oath (affiant) signs the
affidavit form in front of a witness, most commonly a notary public, who
verifies the identity of the person signing. An affidavit is a voluntary action
and is admissible as evidence in court hearings.1

Q2. What are the parts of an affidavit? Provide a sample affidavit.

A2. Parts of an affidavit:

i. The Header or the Caption

Usually seen on the upper left part of an affidavit.
ii. The Title of the affidavit
The common title of an affidavit is Affidavit or if there
are two or more affiants, the title would be Joint
Affidavit. However there are some affidavits which have

1
Affidavit – Definition, Examples, and Writing Tips. (2016, June 28). Retrieved from
https://legaldictionary.net/affidavit/
 been designated with a title such as Affidavit of Loss,
Affidavit of Quitclaim and other affidavits.
iii. The Body of the affidavit
The body is the majority of the affidavit. It can be
divided into sub-parts:
I. Opening Statement – where the affiant states his
name, nationality, legality of age, residential
address and that he has been sworn to in
accordance with law.
II. Statement of Facts – the narration of facts,
written in paragraph form identified thru numbers
or letters.
III. Attestation
iv. Signature of the affiant
The affidavit must be signed by the affiant and is always
place after the body.
v. Jurat
It is placed in the bottom part of an affidavit which
indicates that the affiant have sworn before a notary
public. Furthermore, jurat is where the notary public
affixes his seal and signature, notarial information, and
the record details of the affidavit.2

Note: (Please See Annex 1 – Sample Affidavit)

Q3. How does a jurat differ from an acknowledgment?

A3.

Jurat
A jurat is used when the signer is
swearing to the content of the
document. The notary must
administer an oath or affirmation to
the signer in order to complete the
Acknowledgment
An acknowledgement is used to verify the
identity of the signer and to confirm that
they signed the document. They are not
swearing to the truthfulness or validity of
the document, they are simply

2
Write Your Own Affidavit. (2015, December 11). Retrieved from
https://mackhale13.blogspot.com/2015/12/write-your-own-affidavit.html
 jurat. A jurat also requires that the
signer signs in the presence of the
notary. 3
In executing a jurat, a notary
guarantees that the signer:
a) personally appeared before
the notary,
b) was given an oath or
affirmation by the notary, and
finally
c) signed in the Notary’s
presence.5
acknowledging that they signed the
document. 4
An acknowledgment certificate indicates
that the signer:
a) personally appeared before the
Notary,
b) was identified by the Notary, and
c) acknowledged to the Notary that
the document was freely signed.6

Q4. What is a legal opinion?

A4. Black’s Law Dictionary defines “legal opinion” as a written

document in which an attorney provides his or her understanding of
the law as applied to assumed facts.7

A “legal opinion” is a written statement by a judicial officer, legal

expert or a court as to the legibility or illegibility of a condition,
intendant or action based on legal principles. However, the opinions
expressed in the letter are not a guarantee of a particular outcome.8

A “legal opinion” is formal advice given by a lawyer to the client or

prospective client regarding the applicability of law or settled
jurisprudence to a given set of facts. Essentially, what distinguishes
the lawyer’s opinion from that of anybody else is that the opinion of
the lawyer is based on law or settled legal doctrines. Legal opinions
are not necessarily legally binding but may be of persuasive
authority.9

Its purpose in general, is to persuade or convince a client to take a

recommended course of action after the lawyer makes a thorough
3
Acknowledgment vs. Jurat – What’s the difference?. (2012, October 2). Retrieved from
https://notaryclassonline.com/blog/acknowledgement-vs-jurat
4
Acknowledgment, supra note 3.
5
Jurat vs Acknowledgment. Retrieved from https://www.thebestnotary.net/jurat-vs-acknowledgment/
6
Jurat, supra note 5.
7
“Legal Opinion” Featuring Black’s Law Dictionary. Retrieved from https://thelawdictionary.org/legal-opinion/
8
Retrieved from https://www.academia.edu/35154913/LEGAL_RESEARCH_AND_WRITING_Worksheet_4.pdf
9
Retrieved from https://www.scribd.com/document/232677973/Legal-Opinion-Writing-Notes
 study and deliberation of the facts presented by the client, as well as
the issues and the applicable laws thereto.10

Q5. What are the different parts of a legal opinion?

A5. Parts of a Legal Opinion:

1. Title and Heading

2. Introduction
3. Statement of Facts
4. Issues/Analysis
5. Laws, Jurisprudence and Legal Principles
6. Conclusion
7. Recommendation

Q6. Write a legal opinion on the material attached in the subsequent pages.

Please see Annex 2- Legal Opinion

10
Supra. note 9.
 Annex 1

REPUBLIC OF THE PHILIPPINES)

BUTUAN CITY ) S.S.

AFFIDAVIT OF LOSS

I, MARY ANNJELOU MONTEFALCON, of legal age, and a resident of Blk. 4 Lot 11,
Phase 2 Cinderella Subd., Brgy. Villa Kanangga, Butuan City, having been sworn to in
accordance with law, do hereby depose and state that:

1. I am the same Mary Annjelou Montefalcon, who is a holder of a Driver’s License ID.

2. As such I was issued the same government ID bearing a license no.: K01-10-0017589.

3. However, I noticed recently that said ID was lost.

4. I exerted efforts to locate the said ID, but in spite of diligent search, it could not be
found and the same is now beyond recovery.

5. I herein attest to the truthfulness of the foregoing and I am executing this Affidavit in
support of my application for a new Driver’s License ID and for whatever legal
purpose and intent it may serve.

IN WITNESS WHEREOF, I hereby affix my signature this 3rd day of October 2019 in
Butuan City.

MARY ANNJELOU MONTEFALCON

Affiant

SUBSCRIBED AND SWORN to before me, a Notary Public, this_______day of

December 2018 at Butuan City, affiant known to me and to me known to be the same person
who executed the foregoing.

Doc. No.______
Page No._____
Book No._____
Series of 2018
 Annex 2
ATTY. XANDER FORD LAW OFFICE
Butuan City

03 October 2019

Ms. Mel G
Tindalo Street
Muntinlupa City

Dear Ms. Mel:

This legal opinion seeks to answer your questions as to whether or not will
your marriage be valid after discovering that your partner had already contracted
the same to a certain Ester Salva (past relationship) and whether or not could he be
liable for bigamy when he contract a marriage with you.

Facts:

Per the discussion we had, the following are the pertinent facts:

About last year, you met Jake Cyruz Lopez and fell in love with him.
Recently, you both agreed to get married sooner in October 2019. But sometime in
January 2019, Jake, your boyfriend confessed about his past relationship with a
certain Ester Salva. However, they broke up because he knew that his mother
would disapprove of their relationship. Unfortunately, Jake got Ester pregnant but
it did not stop him from breaking up with her.

Since then, their relationship is over but Jake had consistently been giving
support for their child named Melinda. Ester registered the child as his daughter
and was using the surname Lopez and Jake knew about it.

Recently, you received a mail copy of an alleged marriage license issued by

the Civil Registrar’s Office of Imus, Cavite, dated September 17, 2017 in favor of
Jake and Ester and a certificate of marriage showing that they were married at the
office of some religious pastor at the back of Manila City Hall on August 4, 2012.

Jake insisted that he never married Ester and you believe him because the
handwritten details on the marriage license application form were not his. The
information about where he lived and the names of his parents were all wrong. So
you hired a handwriting expert to examine the documents and Jake’s specimen
handwritings and signatures. The expert concluded that the writings and signatures
on the documents were not those of Jake.

Jake confronted Ester about it and Ester confessed that in 2012, because of
sheer desperation, she got the marriage license from Cavite with someone’s help
and that she paid for the marriage certificate from an office near Manila City Hall.
However, Ester denied sending documents to you and alleged her father for doing
it because of his resentment against Jake. Ester’s father has already told Jake that
he would file bigamy charges against the latter if he marries you.

Applicable Law:

The laws which are deemed relevant to your case:

The marriage of Jake and Ester is a void marriage since it lacks the essential
and formal requisites of a valid marriage, Article 2 and 3 of the Family Code
provides:

Art. 2. No marriage shall be valid, unless these essential requisites are present:
(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.

Art. 3. The formal requisites of marriage are:

(1) Authority of the solemnizing officer;
(2) A valid marriage license except in the cases provided for in Chapter 2
of this Title; and
(3) A marriage ceremony which takes place with the appearance of the
contracting parties before the solemnizing officer and their personal
declaration that they take each other as husband and wife in the presence
of not less than two witnesses of legal age.

Evidently, their marriage is void on grounds that the consent was not freely
given in the presence of a solemnizing officer. That the marriage contracted
between the parties is not valid for reasons that Ester manipulated the said
marriage license. Lastly, formal requisites paragraph 3 did not take place.

Culled from the foregoing, first paragraph in Article 4 of the Family Code
provides that the absence of any of the essential and formal requisites shall render
the marriage void from the beginning.
 Since, the contracted previous marriage is void, the subsequent marriage is
not bigamous unless the provisions of Article 349 of the Revised Penal Code
applies, which provides:

“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 shall be charged of bigamy
provided the presence of its elements:

(1) the offender has been legally married;

(2) the first marriage has not been legally dissolved, or in case his or
her spouse is absent, the absent spouse has not been judicially declared
presumptively dead;
(3) the offender contracts a subsequent marriage;
(4) the subsequent marriage would have been valid had it not been for
the existence of the first.”

Granting that Jake and Ester are not validly married or that their marriage is
void ab initio, in order that the subsequent marriage will not render him bigamous,
Article 40 of the Family Code is applicable, which provides that:

Art. 40. The absolute nullity of a previous marriage may be invoked

for purposes of remarriage on the basis solely of a final judgment
declaring such previous marriage void.

Applicable Jurisprudence:

Interestingly, in the case of Mercado vs. Tan, G.R. 137110, August 1, 2000,
337 SCRA 122, the court states that:

“It is now settled that the fact that the first marriage is void from the
beginning is not a defense in a bigamy charge. As with a voidable
marriage, there must be a judicial declaration of the nullity of a marriage
before contracting the second marriage.

Article 40 of the Family Code states that x x x.

The Code Commission believes that the parties to a marriage should not
be allowed to assume that their marriage is void, even if such is the fact,
but must first secure a judicial declaration of nullity of their marriage
before they should be allowed to marry again. x x x.”
 Moreover, in the case of Morigo v. People, G.R. No. 145226, February 6,
2004, 422 SCRA 376, it was held that:

The present case is analogous to, but must be distinguished

from Mercado vs. Tan. In the latter case, the judicial declaration of
nullity of the first marriage was likewise obtained after the second
marriage was already celebrated. We held therein that: A judicial
declaration of nullity of a previous marriage is necessary before a
subsequent one can be legally contracted. One who enters into a
subsequent marriage without first obtaining such judicial
declaration is guilty of bigamy. This principle applies even if the
earlier union is characterized by statutes as “void.”

In the instant case, however, no marriage ceremony at all was

performed by a duly authorized solemnizing officer. Petitioner and
Lucia Barrete merely signed a marriage contract on their own. The mere
private act of signing a marriage contract bears no semblance to a valid
marriage and thus, needs no judicial declaration of nullity. Such act
alone, without more, cannot be deemed to constitute an ostensibly valid
marriage for which petitioner might be held liable for bigamy unless he
first secures a judicial declaration of nullity before he contracts a
subsequent marriage.

Analysis and Conclusion:

Thus, taking into consideration all of the foregoing circumstances and

applying the legal principles it can be concluded that Art. 40 of the Family Code
would apply to your case. It should be interpreted that Jake Cyruz Lopez must first
obtain a final judgment declaring his previous marriage with Ester Salva void in
order to contract a valid marriage with you (Mel G).
The documentary evidences gathered proves that such marriage between
Jake and Ester was void that the dates inscribed therein are inconsistent. I am
confident that said interpretation would prevail in court.
I appreciate the opportunity to advise you regarding this matter. Please let
me know if you wish to discuss any of these issues further. Thank You.

Yours faithfully,
Xander Ford
Legal Counsel