Escolar Documentos
Profissional Documentos
Cultura Documentos
BarOps Head
Acads Head
Subject Head
Faculty Adviser
I
I
I
I
PY Caunan
Beth Liceralde
Jas Gapatan
TABLE OF CONTENTS
I. PERSONS ....................................................................................................................................................................................................... 1
PERSON ................................................................................................................................................................. 1
KINDS OF CAPACITY ..................................................................................................................................................... 1
LIMITS ON CAPACITY TO ACT ............................................................................................................................................ 1
KINDS OF PERSONS ..................................................................................................................................................... 1
X. PARENTAL AUTHORITY....................................................................................................................................................................32
DEFINITION ......................................................................................................................................................................................................................32
SUBSTITUTE PARENTAL AUTHORITY EXERCISED BY (IN ORDER) ..........................................................................................................................................33
SPECIAL PARENTAL AUTHORITY EXERCISED BY (ART. 218) ................................................................................................................................................33
RIGHTS AND DUTIES OF PARENTS .....................................................................................................................................................................................33
RIGHTS AND DUTIES OF CHILDREN ....................................................................................................................................................................................33
EFFECT OF PARENTAL AUTHORITY UPON THE PROPERTY OF THE CHILD (ART. 225)..............................................................................................................34
GROUNDS FOR SUSPENSION OF PARENTAL AUTHORITY (ART. 231) .....................................................................................................................................34
I. Persons
I. PERSONS
Person
Any being, natural (CC Art. 40) or juridical (CC
Art. 42), susceptible to legal rights and obligations,
and can be a subject of legal relations.
Kinds of Capacity
1. JURIDICAL CAPACITY
37)
GENERAL RULE
Birth determines personality (CC Art 40).
Death extinguishes civil personality (CC Art 42).
EXCEPTION
A conceived child shall be considered born for
all purposes that are FAVORABLE to it, provided it
be born later (Art 40, 2nd clause) with the
following circumstances:
1. From the time it is completely delivered from
the mother's womb.
2. But if the fetus had an intra-uterine life of less
than seven months, it should survive for at
least 24 hours after its complete delivery. (Art.
41, CC) [Test of life: complete respiration]
RULE
Inherent to all natural persons, and can only
be extinguished by death. On juridical persons,
they gain juridical capacity from the moment they
are created.
Juridical capacity is just one, indivisible,
irreducible, and essentially the same for all men; it
is an inherent and ineffaceable attribute of man,
and attaches to him by the mere fact of his being a
man.
2. CAPACITY TO ACT
Power to do acts with legal effect (CC Art. 37)
RULE
They are acquired, and may be lost. They are
also subjects to certain restrictions. Mere existence
of a human being does not confer upon him/her a
capacity to act.
No one has 100% capacity to act, nor does
anyone have absolutely no capacity to act. Even
though one may have full capacity to act, one
still does not reach 100% capacity to act but only
close to it. As to infants, though they still have not
acquired a capacity to act, this does not mean that
they have 0% capacity to act.
Kinds of Persons
1. NATURAL PERSONS
Human beings
I. Persons
Governed by
State
Constitution
(Defines
its
organization and limits its rights vis-vis citizens)
Political
subdivision
Charter
Public
corporation
Charter
Private
corporation
Corporation
Code,
Articles
Incorporation and By-Laws
Partnerships
of
RULES
Juridical persons may acquire and possess
property of all kinds, incur obligations, and
bring civil or criminal actions (CC Art. 46)
Upon dissolution of corporations or institutions
and other entities for public interest, their
property and assets shall be disposed of in
pursuance of the law or charter creating them.
(CC Art. 47)
Domicile
For Natural Persons: the place of their habitual
residence (CC Art. 50).
For Juridical Persons: the place where their legal
representation is established, or where they
exercise their primary functions, unless there is a
law or other provision that fixes the domicile (CC
Art. 51).
DOMICILE VS. RESIDENCE
While domicile is permanent (there is intent to
remain), residence is temporary and may be
changed anytime (there is no necessary intent to
remain).
REQUISITES
VERA)
OF
DOMICILE
(CALLEGO
VS.
1. Physical Presence
2. Intent to remain permanently
KINDS OF DOMICILE
1. Domicile of Origin
Domicile of parents of a person at the time
he was born.
2. Domicile of Choice
Domicile chosen by a person, changing his
domicile of origin.
A 3rd requisite is necessary intention not
to return to ones domicile as his permanent
place.
3. Domicile by Operation of Law (i.e., Article 69,
domicile of minor)
III. Marriage
III. MARRIAGE
Marriage
Is:
1.
2.
3.
4.
5.
6.
7.
8.
9.
a Special Contract
of Permanent Union
Between a Man and a Woman
entered into in Accordance with law
for the Establishment of Conjugal and Family
life.
It is the Foundation of the Family
and an Inviolable Social Institution
whose Nature, Consequences, ,and Incidents
are governed by Law and not subject to
Stipulation,
except that Marriage settlements may Fix
property relations during the marriage within
the Limits provided by this Code. (Art 1,
Family Code)
A. MARRIAGE CEREMONY
III. Marriage
B. AUTHORITY OF SOLEMNIZING OFFICERS
MARRIAGE MAY BE SOLEMNIZED BY:
1. Any incumbent member of the judiciary within
the courts jurisdiction (Art. 7, par. 1);
2. Any priest, rabbi, imam, or minister of any
church or religious sect duly authorized by his
church or religious sect;
He/she must be registered with the civil
registrar general (CRG).
He/she must be acting within the limits of the
written authority granted by the church
At least one of the parties must be a member
of the church or religious sect to which the
solemnizing officer belongs (FC Art. 7, par. 2).
3. Ship captain or airplane chief (FC Art 7, par.
3);
Can only solemnize marriages in articulo
mortis (when there one or both parties are at
the point of death), while the ship is at sea or
the plane is in flight, or at stopovers or ports
of call (FC Art 31).
4. Any military commander of a unit to which a
chaplain is assigned, in the absence of the
latter (FC Art 7, par. 4);
Can only solemnize marriages in articulo
mortis between persons within the zone of
military operation, whether members of the
armed forces or civilians (Art 32, FC).
5. Consul-general, consul, or vice consul (Art. 7,
par. 5)
Can solemnize marriages between Filipino
citizens abroad. The issuance of the marriage
license and the duties of the local civil
registrar shall also be performed by said
consular official. (Art. 10, FC)
6. Mayors (under the Local Government Code, not
found in the Family Code)
C. MARRIAGE LICENSE
REQUIREMENTS
FOR
MARRIAGE
LICENSE
APPLICATION
1. Full name of the contracting party;
2. Place of birth;
3. Age and date of birth;
4. Civil status;
5. If previously married, how, when and where
the previous marriage was dissolved or
annulled;
6. Present residence and citizenship;
7. Degree of relationship of the contracting
parties;
8. Full name, residence and citizenship of the
father;
9. Full name, residence and citizenship of the
mother; and
10. Full name, residence and citizenship of the
guardian or person having charge, in case the
contracting party has neither father nor mother
and is under the age of twenty-one years (Art.
11, FC)
3.
4.
5.
6.
FROM
MARRIAGE
III. Marriage
If a Filipino married to a foreigner and the latter
subsequently obtains a valid divorce abroad
capacitating him./her to remarry, the Filipino
spouse shall likewise have the capacity to remarry
under the Philippine law (Art 26(2)).
Void Marriages
MARRIAGE IS VOID AB INITIO WHEN:
I. UNDER FC ART. 35
1. Contracted by anyone below 18 years old,
even with consent of parents
2. Solemnized by anyone not authorized to
do so, except when one or both parties
believe that the solemnizing officer had
authority to do so.
3. There is no marriage license, except in
marriage under exceptional circumstances
4. It is bigamous or polygamous, except
when first spouse has been absent for four
years, or two years under extraordinary
circumstances, and the remaining spouse
has a well-founded belief that the absent
spouse is dead, and is judicially declared
presumptively dead. (Art. 41)
5. There is a mistake in identity of the other
contracting party
6. The subsequent marriage is void under
Art. 53:
Marriage is void when Art. 52 is not complied
with: There must be a partition and distribution of
property after the judgment of annulment of
declaration of nullity. The presumptive legitimes of
the children must also be delivered and recorded in
the appropriate civil registry.
II. UNDER FC ART. 36
7. Any contracting party is, at the time of the
celebration
of
the
marriage,
psychologically incapacitated to comply
with the essential marital obligations.
III.
UNDER
FC
ART.
37
(INCESTUOUS
RELATIONSHIPS)
8. Between ascendants and descendants of any
degree, legitimate or illegitimate.
9. Between brothers and sisters, whether full
or half-blood, legitimate or illegitimate.
IV. UNDER FC ART. 38 (FOR REASONS OF PUBLIC
POLICY):
10.Between collateral blood relatives, legitimate
or illegitimate, up to the fourth civil degree.
11.Between step-parents and step-children.
12.Between parents-in-law and children-in-law.
13.Between adopting parent and adopted child.
14.Between the surviving spouse of the
adopting parent and the adopted child.
15.Between the surviving spouse of the
adopted child and the adopter.
16.Between an adopted child and a legitimate
child of the adopter.
17.Between adopted children of the same
adopter.
OF
III. Marriage
RULE ON BIGAMOUS MARRIAGE (ART. 41):
GENERAL RULE
Marriage contracted by any person during the
subsistence of a previous marriage is VOID
EXCEPTION
If the first spouse has been absent for four
consecutive
years,
or
two
years
under
extraordinary circumstances, and the surviving
spouse has a well-founded belief that the spouse is
dead, and there is a judicial declaration of
presumptive death, without prejudice to the effect
of the reappearance of the absent spouse.
Exception to the exception
When both parties in the subsequent marriage
acted in bad faith, the marriage is still void (Art.
44).
In People v Mendoza, Mendoza contracted
three marriages. He contracted the second
marriage during the subsistence of the first
marriage. He contracted the third marriage after
the death of his first wife. He was prosecuted for
bigamy on his third marriage. The Supreme Court
held that he is not guilty for bigamy for his third
marriage, since his prior subsisting marriage has
already been extinguished by the death of his first
wife. It is the second marriage that is bigamous.
EFFECTS OF TERMINATION OF BIGAMOUS
MARRIAGE (FC ART 43):
1. Children considered legitimate
2. Property Regime dissolved and liquidated
(party in bad faith shall forfeit his/her share in
favor of the common children or children by a
previous marriage, and in case there are none,
to the innocent spouse)
3. Donation propter nuptias remains valid,
(but if the donee contracted marriage in bad
faith, donations will be revoked)
4. Insurance benefits innocent spouse may
revoke
designation
of
guilty
party
as
beneficiary, even if such designation is
irrevocable
5. Succession Rights Party in bad faith
disqualified to inherit from innocent spouse,
whether testate or intestate
6. Donations - If both parties of subsequent
marriage acted in bad faith, any donations and
testamentary dispositions made by one party to
the other by reason of marriage will be revoked
(Art. 44)
Voidable Marriages
MARRIAGE MAY BE ANNULLED, WHEN (FC
ART 45):
1. One of the parties is 18 or above but below 21,
and there is no parental consent.
2. Either party was of unsound mind (insanity).
3. The consent of either party was obtained
through fraud (different from mistake in
identity):
Insanity
of
Who Can
File
(Art. 47)
Prescription
(Art. 47)
1. Underage
party
1. 5 years after
attaining 21.
2. Parent or
guardian
2. Before child
reaches 21.
1.
Sane
spouse with
no
knowledge of
the
others
insanity
2.
Legal
guardian of
insane party
1. Any time
before
the
death of insane
party
3.
Insane
party
2. During lucid
interval or after
regaining
sanity,
and
before death
How To
Ratify (Art.
45)
Free
cohabitation
after
attaining age
of 21
Free
cohabitation
of
insane
party
after
coming
to
reason
III. Marriage
Fraud
Injured party
(defrauded
party)
Force,
intimidation,
undue
influence
Injured party
Impotence
Healthy
party
STD
Healthy
party
Free
cohabitation
after having
full
knowledge of
fraud
Free
cohabitation
after
the
force
has
ceased
or
disappeared
Deemed
ratified when
action
prescribes
Deemed
ratified when
action
prescribes
Voidable
Marriage
1. Nature
VALID
until
annulled by court
2. Co-validation
CANNOT
covalidated
be
CAN be covalidated
by prescription or
free cohabitation
3. Effect
property
on
No
Community
Property,
only
Coownership
4.
Legitimacy
of children
Children
are
LEGITIMATE
if
conceived
before
decree
of
annulment
previous marriage
(Art. 53), children
are
considered
LEGITIMATE.
5.
How
impugn
to
May
be
attacked
DIRECTLY
or
COLLATERALLY, except
for
purpose
of
remarriage
(there
must be JDN)
Can
only
be
attacked DIRECTLY
(there
must
be
annulment decree)
6.
Effect
of
death of parties
Can no longer be
impugned
after
death of parties
Legal Separation
BED AND BOARD SEPARATION MAY
DECREED WHEN THERE IS (ART. 55):
BE
III. Marriage
LEGAL
SEPARATION
Rights of Spouses
1. In case the other spouse neglects his or her
duties or commit acts which tend to bring
danger, dishonor or injury to the family, the
aggrieved party may apply the court for
relief. (Art. 72)
2. Either spouse may exercise any legitimate
profession, without need for consent of the
other. The other spouse may only object on
valid, serious, and moral grounds. (Art. 73)
In case of disagreement, the Court shall decide
whether (1) the objection is proper, and (2) benefit
has accrued to the family before the objection.
Use of Surname
A. MARRIED WOMEN:
A married woman may use:
1. Her maiden first name and surname and add
her husband's surname, or
2. Her maiden first name and her husband's
surname or
3. Her husband's full name, but prefixing a word
indicating that she is his wife, such as Mrs.
(Art. 370, CC)
The wife has the option to choose which
among these names she should use. Should she
decide to keep her maiden name, the use of the
word may in the provision indicates that she may
do so.. (A US Case allowed a woman to keep her
maiden name especially because many of her
professional relations already know her by that
name.)
In Yasin v Sharia District Court, the
Supreme Court, by way of obiter dictum, said that
the woman only has an option and not a duty to
use the surname of her husband, as provided for in
Art. 370, CC. It also said that when her husband
dies, the woman can revert to her old name
without need for judicial declaration.
B. WIDOWS:
A widow may use the deceased husbands
surname as though he were still living. (Art. 373,
CC)
C. MISTRESSES:
In Legamia v IAC, the Supreme Court
allowed the mistress to use her live-in partners
name, since everyone already knew that she was a
mistress, so as to avoid confusion.
MARRIAGE
REQUISITES:
DONATIONS EXCLUDED:
1. ordinary wedding gifts given after the
celebration of the marriage
2. donations in favor of future spouses made
before marriage but not in consideration thereof
3. donations made I n favor of persons other than
the spouses even if founded on the intended
marriage
WHO MAY DONATE?
1. spouses to each other
2. parents of one or both spouses
3. 3rd persons to either or both spouses
DISTINGUISHED
DONATIONS:
FROM
ORDINARY
Donations Propter
Nuptias
Ordinary Donations
May be made by
minors (Art. 78)
RULES
BEFORE MARRIAGE
General Rule
Future spouses cannot donate to each other
more than 1/5 of their present property (excess
shall be considered void) (Art. 84)
Exception
If they are governed by ACP.
DURING MARRIAGE
General Rule
Spouses cannot donate to each other, directly
or indirectly (donations made by spouses to each
other during the marriage are void) (Art. 87)
exclude
ON
DE
FACTO SEPARATION
(ART.
GENERAL RULE
De facto separation does not affect the ACP.
EXCEPTIONS
1. Spouse who leaves the conjugal home without
just cause shall not be entitled to support.
He/She, however, is still required to support the
other spouse and the family.
2. If consent is necessary for transaction but is
withheld
or
otherwise
unobtainable,
authorization may be obtained from the court.
3. Support for family will be taken from the ACP.
4. If ACP is insufficient, spouses shall be solidarily
liable.
5. If it is necessary to administer or encumber
separate property of spouse who left, spouse
present may ask for judicial authority to do this.
6. If ACP is not enough and one spouse has no
separate property, spouse who has property is
liable for support, according to provisions on
support.
IN CASE OF ABANDONMENT (ART. 101):
Present spouse may petition the court for:
a. receivership;
b. judicial separation of property; or
c. authority to be the sole administrator of the
absolute
community,
subject
to
precautionary conditions that the court may
impose.
Spouse is prima facie considered to have
abandoned the other spouse and the family if:
TERMINATION OF
OF ONE OF THE
OF
TWO
WHERE IT APPLIES:
COMMON
ACP
1. Property acquired
before marriage.
Properties become
property
part
of community
2. Property acquired
during marriage
3. Upon dissolution of
marriage
4. Basis
5. Liquidation
Ordinary partnership
Comes
into
existence
according
agreement between parties
to
2. Purpose, duration, Predetermined by legislator, the law fixing Determined by will of partners.
and rules
its conditions.
3. Profits
Divided
equally
between
spouses, Depends upon respective capitals
irrespective of the amount of capital that partners, or upon their agreement
they bring into marriage
4. Equality
No equality between spouses in control, General rule is that all partners have equal
management, and disposition, because the rights in administration, management, and
law
grants
the
husband
some control of partnership.
predominance.
5. Personality
No juridical personality
6. Commencement
At precise
marriage
7. Regulation
By law
8. Purpose
For profit
9.
Causes
dissolution
moment
of
celebration
11.
Division
properties
12. Management
(ART.
121)
[CF.
OR
ENCUMBRANCE
OF
THE
DISPOSITION OF PROPERTY
Alienation of said property in any form, such
as sale, donation, or assignment.
ENCUMBRANCE OF PROPERTY
Includes a real estate mortgage of immovable
property or a chattel mortgage or pledge of
personal property of the CPG.
Disposition or encumbrance of conjugal
property requires the consent or approval by both
spouses.
Mere awareness of a transaction is NOT
consent
DISPOSITION BY WILL
Same rule as Art. 97: Either spouse may
dispose by will of his interest in the ACP. (but there
is no provision specifically for CPG).
DISSOLUTION OF CPG (ART. 128):
1. Prepare inventory, listing separately all the
properties of the conjugal partnership and the
exclusive properties of each spouse.
2. Amounts
advanced
by
the
conjugal
partnership in payment of personal debts and
obligations of either spouse shall be credited
to the conjugal partnership.
3. Each spouse shall be reimbursed for the use
of his or her exclusive funds in the acquisition
of property or for the value of his or her
exclusive property, the ownership of which has
been vested by law in the conjugal partnership.
4. The debts and obligations of the conjugal
partnership shall be paid out of the conjugal
assets. In case of insufficiency of said assets,
the spouses shall be solidarily liable for the
unpaid balance with their separate properties,
in accordance with the provisions of paragraph
2 of Article 121.
5. Whatever remains of the exclusive properties
of the spouses shall thereafter be delivered to
each of them.
6. Unless the owner had been indemnified from
whatever source, the loss or deterioration of
movables used for the benefit of the family,
belonging to either spouses, even due to
fortuitous event, shall be paid to said spouse
from the conjugal funds, if any.
7. The net remainder of the conjugal partnership
properties, or the profits, which shall be
divided equally between husband and wife,
unless a different proportion or division was
agreed upon in the marriage settlements or
D. Separation
Marriage
of
Properties
During
be
SUFFICIENT
CAUSES
FOR
JUDICIAL
SEPARATION OF PROPERTIES (ART. 135):
1. Spouse of the petitioner has been sentenced
to a penalty which carries with it civil
interdiction.
2. Spouse of the petitioner has been judicially
declared an absentee.
3. Loss of parental authority of the spouse of
petitioner has been decreed by the court.
4. Spouse of the petitioner has abandoned the
latter or failed to comply with his or her
obligations to the family.
5. The
spouse
granted
the
power
of
administration in the marriage settlements
has abused that power.
6. At the time of the petition, the spouses have
been separated in fact for at least one year
and reconciliation is highly improbable.
In the cases provided for in Numbers (1), (2)
and (3), the presentation of the final judgment
against the guilty or absent spouse shall be enough
basis for the grant of the decree of judicial
separation of property.
In cases provided for in numbers (4), (5), and
(6), a preponderance of evidence is required to
secure a judicial separation of property.
TO
THE
CPG
Absolute Community
What
gets Only the net Entire common mass of
divided
profits
property which remains
after the payments of
between the
spouses?
the
debts
and
obligations
of
the
absolute community
Why?
Spouses
retain
their
separate
properties
which do not
become part
of
the
conjugal
properties
All
the
separate
properties
of
the
spouses
before
the
marriage become part
of
the
community
property.
- each spouse loses
ownership of whatever
properties
he/she
brought
to
the
marriage.
ADMINISTRATION:
Each spouse shall own, dispose, possess,
administer, and enjoy his/her own estate, without
need for consent of the other. (Art. 145)
FAMILY EXPENSES:
Each spouse shall contribute to the family
expenses, in proportion to their income. In case of
insufficiency, the market value of their separate
properties. (Art. 146)
Liability of spouses to the creditors of the
family shall be SOLIDARY. (Art. 146, par. 2)
DEFINITION
Dwelling place of a person and his family
A real right, which is gratuitous, inalienable,
and free from attachment, constituted over the
dwelling place and the land on which it is situated,
which confers upon a particular family the right to
enjoy such properties, which must remain with the
person constituting it and its heirs
The house and lot must be owned by the
person who constitutes it as it ins in the nature of
the family home to be permanent
To constitute the family home, there must be
actual occupancy with the intention of dedicating
the premises for such purpose
premises
20 of 39
EXCEPTION:
Cannot
be
constituted
upon
permanently used for business purposes
for
PATERNITY
The relationship or status of a person with
respect to his or her child (paternity includes
maternity).
FILIATION
The status of a person with respect to his or
her parents.
TYPES OF FILIATION
1. Natural
a. Legitimate (Art. 164)
b. Illegitimate (Arts.165, 175, 176)
c. Legitimated (Arts. 167-172)
2. By Adoption (R.A. No. 8552 (Domestic
Adoption Act) and R.A. No. 8043 (Intercountry Adoption Act))
3 TYPES OF LEGITIMATE CHILDREN
1. Legitimate proper
2. Legitimated
3. Adopted
PROCEDURE TO
ARTICLE 160:
B. Legitimate Children
AVAIL
OF
RIGHT
UNDER
DEFINITION
conceived
conceived
conceived
conceived
C. Impugning Legitimacy
1. PHYSICAL IMPOSSIBILITY
It was impossible for the husband to have sex
with his wife within the first 120 days (period of
conception) of the 300 days which immediately
preceded the birth of the child because of:
a. Physical incapacity impotence, not
sterility. This presumption is so strong that
evidence must be so convincing to justify
the bastardization (there really is this term)
of the child. In the case of Tarleton v.
Thompson, the guys penis was cut off but
the court still declared him to be the father
since even if cut, it was still 3 inches long
(long enough to be able to copulate).
b. Living Separately Mere remoteness is
not sufficient.
c. Serious Illness Illness must be serious to
absolutely prevent him from having sex.
WHY?
Because if it is impossible for the
husband to have sex with his wife during the said
period of 120 days, the child could not be his
legitimate child.
2. Biological or other scientific grounds
a. Blood grouping tests can determine nonpaternity but not paternity (ex. A-B-O test).
b. Human Leukocyte Antigen Test (HLA) can
prove identity between child and father with
a probability exceeding 98%.
c. DNA test
d. Vasectomy
SEMPIO-DIY:
A
double
vasectomy,
together with other pieces of evidence, can
show the impossibility of the alleged father
siring his supposed child.
STA. MARIA: The fact that the husband
has undergone vasectomy is not enough
proof to rebut the presumption of
legitimacy (Cocharan v. Cocharan).
IS
CONSIDERED
LEGITIMATE
Celebration of
2nd marriage
REASON
To allow other people, especially those not
belonging to the family where the child was born,
to bring an action to impugn the legitimacy of such
child, would be to invite other actions, with or
without basis, by those whose only purpose is to
break up a family to satisfy a jealous or revengeful
feeling.
RIGHTS
174):
OF
LEGITIMATE
CHILDREN
(ART.
D. Illegitimate Children
Children born outside of a valid marriage are
illegitimate. (Art. 165)
PROOF OF FILIATION
The same as legitimate children (Art. 175)
RIGHTS OF ILLEGITIMATE CHILDREN (ART.
176)
1. To bear the surname of their mother and
FATHER(the right to use the fathers surname is
granted to them through RA 9255, thereby
amending Art. 176)
Requirement to use fathers Surname
Acknowledgement from father through:
The birth certificate;
A public document; or
A private handwritten instrument;
2. To receive support from their parents,
ascendants, and in proper cases, their brothers
and sisters; and
3. To the legitime and other successional rights
granted by law to legitimate children.
E. Legitimated Children
LEGITIMATION:
Remedy by means of which those who in fact
were not born in lawful wedlock and should
therefore be considered illegitimate children are BY
FICTION considered legitimate children, it being
supposed that they were born when their parents
were validly married.
It is an act by which the quality of a legitimate
child is conferred upon an illegitimate child.
A product of NATURE AND LAW.
Legitimation takes place by a subsequent valid
marriage between the parents. Annulment in the
future does not affect legitimacy.(Art. 178)
COMPARED TO ADOPTION
Adoption
Law merely creates by fiction a relation which
did not in fact exist.
Legitimation
Law merely makes legal what exists by
nature.
WHO CAN BE LEGITIMATED (ART. 177):
1. Child who is conceived and born outside of
wedlock; and
2. At the time of conception, the parents were not
disqualified by any impediment to marry each
other.
i.e. children those who are not disqualified by any
impediment to marry each other
CHILDREN OF FOLLOWING CANNOT BE LEGITIMATED
(BECAUSE OF IMPEDIMENT)
1. Adulterous relationships
2. Incestuous relationships
3. Bigamous relationships
4. Void marriages by reasons of public policy
under Art. 38
RULES:
1. RIGHTS: Legitimated children shall enjoy the
same rights as legitimate children (Art. 179)
2. RETROACTIVITY: The effects of legitimation
shall retroact from the time of the childs birth.
(Art. 180)
3. DEATH OF CHILD: When the child dies before
the celebration of the marriage, their
legitimation shall benefit their descendants.
(Art. 181)
VIII. Adoption
VIII. ADOPTION
*Provisions of the Family Code have been amended by RA 8049 (Inter-Country Adoption Act0 and RA
8552(Domestic Adoption Act)
A. Definition
A juridical act which creates between two persons a relationship similar to that which results from
legitimate paternity and filiation.
ADOPTION VS. LEGITIMATION:
SIMILARITIES
Both are given status of a child born in lawful wedlock of the parents adopting or legitimizing it.
DIFFERENCES
LEGITIMATION
Persons
affected
Only
children
ADOPTION
Only
by
parents
Effect
by
judicial
VIII. Adoption
RA 8522
Art. 183
Sec. 7
1. person of age (18)
a) Any Filipino citizen:
o of legal age
2. in possession of fully civil capacity & legal
o in possession of full civil capacity & legal rts
rights
o of good moral character*
3. in a position to support & care for his kids in
o not been convicted of any crime involving
keeping w/means of the family
moral turpitude
4. at least 16yrs older than person to be adopted
unless the adopter is the parent by nature or
o emotionally & psychologically capable of
sp of legitimate parent of person to be
caring for children*
o in a position to support & care for his/her
adopted
kids in keeping w/means of the family
5. spouses jointly/married person w/consent of
o at least 16 yrs older than adoptee and who is
sp except:
in a position to support and care for
a. when 1 seeks to adopt his own illegit child
his/her children in keeping with the
b. when 1 sp seeks to adopt the legit child of
means of the family. 16 years difference
other
may be waived when adopter is biological
6. not disqualified under FC 184
parent or is the sp of the adoptees parent
VIII. Adoption
Aliens
stricter in adoption by aliens compared to
PD 603 because children adopted by
aliens suffered cultural and psychological
shock and could not adjust to their new
lives in the foreign countries
Some pedophiles simply abandoned the
children after they had satisfied their
sexual desires on them in their foreign
homes
Alleged cases where children were killed
for organ transplants in the foreign
countries.
By restricting, there is some assurance
that adopted children will receive love,
care and protection
Art. 185
Aliens
- Liberalized the restrictions on adoption by aliens imposed
by the Family Code.
- Aliens may now adopt subject to the conditions/provided
that qualifications are satisfied.
Adoption by H & W
- one spouse adopts the illegitimate child of the other in this case, only one is the adopter, although with the
consent of the other spouse.
- If spouses are legally separated, no need for joint
adoption and the consent of the other is not necessary.
Guardians
- may adopt both under FC and RA 8522 provided that
guardianship is terminated and he has been cleared of
his financial accountabilities.
Reason: to prevent guardian who has misused or
misappropriated the funds or properties of his ward to resort to
adopting his ward to avoid an accounting of such funds or
properties and possible criminal action.
RA 8522
VIII. Adoption
Art. 187. The following may not be adopted:
(1) A person of legal age, unless he or she is a
child by nature of the adopter or his or her spouse,
or, prior to the adoption, said person has been
consistently considered and treated by the adopter
as his or her own child during minority.
(2) An alien with whose government the Republic
of the Philippines has no diplomatic relations; and
(3) A person who has already been adopted unless
such adoption has been previously revoked or
rescinded. (30a, E. O. 91 and PD 603)
D. Pre-Adoption
PRE-ADOPTION counseling services for the
biological parents of adoptee, prospective adoptive
parents, and prospective adoptee.
Section 4 under Art. 111 of Rules and Regulation to
implement RA 8552:
1. Biological Parent(s)
a. Biological Parents shall be counseled
regarding their options:
i. to keep the child and avail of services
and assistance;
ii. avail
of
temporary
child
care
arrangements such as foster care; or
iii. relinquish the child for adoption
b. Topics to focus on:
i. the loss of parental rights over the child
and as a rule, not having further
contact with the child;
ii. the importance of providing relevant
information on the child, their own
medical
history
and
family
background;
iii. the possibility that the child may be
placed
for
adoption
within
the
Philippines or in a foreign country;
iv. the possibility that in the future, there
may be communication with the child
at their or the childs initiative.
VIII. Adoption
b.
3. Prospective Adoptee
a. A prospective adoptee shall be provided with
counseling and other support services
appropriate to his/her age and maturity, and
in a manner and language that the child
comprehends, especially to enable him/her
to understand why he/she has been
relinquished for adoption.
b. In the case of a prospective adoptee whose
consent to his/her own adoption is
necessary, the social worker/counselor shall
consider the childs wishes and opinions,
ensure that his/her consent is voluntary and
duly inform him/her of the effects of such
consent.
8.
9.
10.
E. Adoption Procedure
Article 5, Rules and Regulations to implement
RA 8552:
Steps 1 and 2 for prospective adopters. Step 3 and
4 for prospective adoptees
1) Application for Adoption. Prior to this,
prospective adopters should attend adoption fora
and seminar. Reasonable fees and charges are also
imposed to adopters. After which, they shall file
his/her
application
for
adoption
with
the
Department directly or with a social service office
of a local government unit, or with any licensed
accredited child placing agency. Spouses shall file
their application jointly.
2) Preparation of Home Study Report.
Department representatives shall conduct home
visits to the applicants to determine whether they
have capacity to adopt or not. The following
documents/certifications are required:
1. Authenticated birth certificate
2. Marriage Contract or Divorce, Annulment,
Declaration of Nullity, or Legal Separation
documents;
3. Written consent to the adoption by the
legitimate and adopted sons/daughters,
and illegitimate sons/daughters if living
with the applicant, who are at least ten
(10) years old;
4. Physical and medical evaluation by a duly
licensed
physician
and
psychological
evaluation by a psychologist;
5. NBI/Police Clearance
6. Latest income tax return or any other
documents showing financial capability,
e.g. Certificate of Employment, Bank
Certificate or Statement of Assets and
Liabilities;
7. Three (3) character references, namely
from the local church/minister, the
employer, and a non-relative member of
11.
12.
13.
VIII. Adoption
Department
adoption.
that
child
is
available
for
5)
Submission
Of
Case
Records
Of
Prospective
Adoptees
and
Prospective
Adoptive Parents. Case Records of prospective
adoptees and prospective adoptive parents shall be
submitted to the concerned Adoption Resource and
Referral Office (ARRO) which was established
according to Section 23 of the Act for matching.
6) Matching. The matching of the child to an
approved adoptive parent(s) shall be carried out
of the disruption
the Department
placement of the
alternative long
VIII. Adoption
10) Filing Of Petition For Adoption. the
prospective adoptive parent(s) shall initiate judicial
proceeding by filing the petition to adopt not later
than 30 days from date of receipt of the
Departments written consent to adoption.
Issuance of Decree of Adoption and Entry of
Judgement.
If,
after
considering
the
recommendation and reports of the social worker
and other evidence, the Court is satisfied that the
adopter(s) are qualified to adopt, then an adoption
decree and an Entry of Judgement shall be issued.
A copy of the decree of adoption shall be forwarded
to the Department.
Travel Authority of Adopted Child. No
adoptee shall be issued a travel authority unless a
decree of adoption has already became final and
executory.
In this respect, the amended birth certificate shall
be presented. If for any valid reason the same
cannot be presented, the following is required:
a. copy of the decree of adoption and entry of
judgement
b. a certification from the Office of the
Solicitor General that the decision is final
and executory and that no appeal there
from has been filed by the said office.
Recording Of The Court Decision. court
decision on adoption and the finality of decision
shall be submitted to the following not later that
thirty (30) days after the court decision has
become final and executory:
a.
b.
Local
Civil
Registry
Office
of
the
City/municipality where the court issuing
the same is situated
Register of Court Decrees
IX. SUPPORT
SUPPORT
everything
indispensable
for
sustenance, dwelling, clothing, medical attendance,
education and transportation, in keeping with the
financial capacity of the family (Art. 194)
Kinds of Support
1. Legal that which is required to be given by
law
2. Judicial that which is required to be given by
court order whether pendente lite or in a final
judgment
3. Voluntary or Conventional by agreement
An example of conventional support is as
follow.
X donates land to Y.
However X
imposes a mode Y has to support Xs mother.
Characteristics of Support
1. Personal
2. Intransmissible
3. Not subject to waiver or compensation with
regard to future support
Support in arrears can be waived.
4. Exempt from attachment or execution (Art.
205)
5. Reciprocal on the part of those who are by law
bound to support each other (Art. 195)
6. Variable (Arts. 201 and 202)
RULES:
Spouses
Descendants, nearest in degree
Ascendants, nearest in degree
Brothers and Sisters
IX. Support
X. PARENTAL AUTHORITY
Definition
PARENTAL AUTHORITY (Patria Potestas)
the mass of rights and obligations which
parents have in relation to the person and
property of their children until their
emancipation, and even after this under
certain circumstances. (Manresa)
Parental authority under the Family Code
includes parental responsibility.
It is the right and duty of parents to protect
their children, to care for the in sickness and
health, and do whatever may be necessary for
their care, maintenance, and preservation.
Purpose: The physical preservation and
development of children, as well as the
cultivation of their intellect, and education of
their heart and senses.
PARENTAL AUTHORITY INCLUDES:
1. the caring for and rearing of children for civic
consciousness and efficiency;
2. the development of the moral, mental and
physical character and well-being of said
children
PARENTAL AUTHORITY MAY ONLY BE WAIVED
IN CASES OF:
1. adoption,
2. guardianship,
3. commitment of the child in an entity or
institution engaged in child care or in a
childrens home.
Both parents exercise joint authority over
their children
In case of disagreement, the fathers decision
shall prevail, unless there is judicial order
TOLENTINO: wifes authority is subordinated,
although subsidiary, to that of the father.
WHY FATHERS DECISION? Based on tradition.
TOLENTINO: If the child is adopted by only one
spouse, then he is under the parental authority of
such adopter.
Illegitimate children are under the parental
authority of the mother (Art. 176, FC)
WHO EXERCISES AUTHORITY IN CASES OF
DEATH,
ABSENCE,
REMARRIAGE,
OR
SEPARATION OF PARENTS?
X. Parental Authority
Special Parental
Authority
It is exercised in case of
death, absence, or if
unsuitability of parents.
Hence, it is not exercised
by the parents of parental
authority over the minor
children.
It is exercised
concurrently with the
parental authority of the
parents and rest on the
theory that while the child
is in the custody of the
person exercising special
parental authority, the
parents temporarily
relinquish parental
authority over the child to
the latter
X. Parental Authority
THEIR
of
Parental
Subject Committee
[Subject]
Information Management
Committee
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