PERSONS AND FAMILY RELATIONS

The FAMILY
Articles 149-151
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What family relations include

Requirement when (civil) suit is between members of the same family What cannot be the subject of compromise or amicable settlement even if parties to the suit are members of the same family (
Exclusion to the requirements of earnest efforts.
o
*judicial settlement of estate (special proceedings)
o
*one party is a stranger to a suit (collateral blood relatives)
Cases:
HIYAS SAVINGS v. ACUNA
Art. 151 applies only in cases w/c are exclusively between or among members of the same family, it necessarily flows that the same may be
invoked only by a party who is a members of that same family.

FAMILY HOME
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Who constitutes, when and where shall it be constituted: H/W or the Unmarried Head of the Family in a dwelling house where they & their family
reside, and the land on which it is situated [Art. 152]; from the time it is occupied as a family residence and for so long as any of is beneficiaries
actually resides therein, the family home remains and is exempt from forced sale, attachment, and execution.
Property that may be constituted as family home: CPG of H&W; EP of either H/W with consent of the other; EP of unmarried head of the family
Benefits of constitution, prohibition once constituted, exception to the prohibition: exempt from forced sale, execution, or attachment subject Art.
155 and 160
o
Non-payment of Taxes, debts incurred prior to the constitution of FH, debts secured by mortgages before or after constitution of FH,
debts due to laborers, etc.
o
If it exceeds the value fixed by law under 157, may be subject to execution at the instance of the party claiming for judgment debt
Cases:
1. MODEQUILLO V. BREVA- compare CC and FC, Art. 162 simply governs existing family residences at the time of FCs effectivity and are
prospectively entitled to benefits accorded to FH established under FC. It does not state that it has a retroactive effect.
2. TANEO, JR. V. CA- FH is constituted on a dwelling place where the family resides and on the lot on which it is situated, not on the property
owned by a third person; it is not exempt from debts incurred prior to its constitution
3. CABANG V. BASAY- same Taneo ruling
Beneficiaries of a family home
1. PARTICIO V. DARIO III requisites of being a minor beneficiary: relationship in 154, residing in FH, dependent for legal support
Grounds when family home is not exempt from levy, execution or attachment: 155 and 160
Value of the family home and how many family homes may one constitute: 157: 200k rural and 300k urban.

Comment [KC1]:
Husband and wife
Parent and Children
Among other Ascendants and Descendants
Brothers and Sisters w/r full or half-blood
Comment [KC2]: HSB v. Acuna
-Once a stranger becomes a party to a suit
involving members of the same family, the law no
longer makes it a condition precedent that
earnest efforts towards a compromise have been
made before an action can prosper
Comment [KC3]: HW / Unmarried Head of the
Family constituting the family home; their
-Parents, ascendants, descendants, brothers and
sisters, whether the relationship be legitimate or
illegitimate
-Living in the family home
-Depend upon the head of the family for legal
support [154]
Comment [KC4]: Under the CC, there is a need
to constitute the FH either
-judicially (filing a petition in court)
- extrajudicially (recording in a public instrument
in RoD)
In the FC, FH is deemed constituted at the time it is
occupied as a family residence.

PATERNITY AND FILIATION

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Presumption of legitimacy if born within a valid marriage: A child conceived and born during a valid marriage is presumed to be legitimate as well
as those born out of artificial insemination through the sperm of husband or a donor, or both
Status of children born thru artificial insemination, requisites Provided, authorized and ratified by both parents in a written instrument executed
and signed before the birth of the child and recorded together with the CLB of the child in the LCR.
Grounds, periods to impugn legitimacy, and who may impugn: A husband may impugn a childs legitimacy on the ff grounds:
- Physical impossibility of sexual intercourse during the first 120 days of the 300 days immediately preceding the birth of the child due to
o
Impotence of the husband
o
H and W are living separately during such period
o
Physical illness precluding sexual intercourse
-Scientific/Biological Reasons other than insemination
-Vices of Consent attending either of the parents consent in ratification and authorization of Artificial Insemination
Presumption of filiation if marriage is terminated and wife contracts a subsequent marriage within 300 days after the termination if there is no
proof: before 180, previous marriage; after 180, subsequent provided both cases are w/I the 300 days after the termination of 1 st marriage
Instances when heirs may impugn legitimacy in lieu of the father: death of parent w/I the unexpired prescriptive period; death without having
desisted in impugning the childs legitimacy; birth of child after death of putative parent
Cases:
1. BADUA v. CA 164 (presumption); 167 (grounds); 170 (prescriptive period); 171 (exceptional circumstances/heirs) do not apply
2. BABIERA v. CATOTAL- 170s prescriptive periods do not apply in an action to declare the nullity of a CLB which is allegedly void ab initio.
3. DE JESUS v. DIZON- due recognition of an illegitimate child in a record of birth, will, statement before a court of record, or in any form of
authentic writing is in itself a consummated act which requires no court approval for recognition of filiation.
4. LIYAO v. TANHOTI-LIYAO5. CONCEPCION v. CA & ALMONTE- Proof beyond reasonable doubt must be shown that there is no possibility of sexual access to enable H to
father Ws child. Sexual intercourse is presumed where personal access is not disproved. Further, since marriage of Gerardo and Mar. was void
from the beginning, he never became the husband and thus never acquired any right to impugn the legitimacy of her child. (167)
6. ONG v. DIAZ - four procedural aspects of a traditional paternity action
a.
Prima facie proof
i. When the woman declares supported by corroborative evidences that she had sexual relations w/ the putative father;
then burden of proof shifts to the father
b. Affirmative defense
i. Impotency
ii. Wife has had many sexual relations w/ other men
c.
Presumption

Comment [KC5]: BADUA V. CA

These articles govern a situation where a Husband
denies fathering a child born by his wife, not a case
where the child is claimed not to be the biological
child of both husband and wife at all.
Comment [KC6]: BABIERA V. CATOTAL
The provision presupposes that the child was the
undisputed offspring of the mother. In this case,
there is no blood relation to impugn in the first
place.
Comment [KC7]: LIYAO V. TANHOTI-LIYAO
Impugning the legitimacy of the child is a strictly
personal right of the husband because it is he who is
confronted with ridicule and scandal brought about
by the infidelity of his wife. Consequently, it is he
who has to decide whether to expose such on
account or economic and moral interest involved or
to conceal the same.

d.

Physical resemblance

PROOF OF FILIATION
-

Primary and secondary proofs whether legitimate or illegitimate

o
Primary: (1) CLB or final judgment; (2) open admission in a public document/ private handwritten instrument and signed by the parent
concerned
o
Secondary: (1) Open and continuous possession of the status of a legitimate (illegitimate) child; (2) other means allowed by rules of court

Cases:
1.
2.
3.
4.
5.

6.
7.
8.

9.
10.
11.
12.
13.
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FERNANDEZ v. CA Baptism
FERNANDEZ v. FERNANDEZ Childless couple bought a child for 20 pesos; not a valid adoption APPLICATION FOR RECOGNITION OF
BACKPAY RIGHTS; There can be a collateral attack in order to determine the rights over the disputed properties.
LABAGALA v. SANTIAGO- - Recovery of title, possession is outside the scope of the prescriptive periods; use of family name does not
establish pedigree
LOCSIN v. LOCSIN, JR It is highly unlikely that CRG would have reason to falsify a CLB from Iloilo City.
BERNABE v. ALEJO- 285 CC is a substantive right which cannot be divested upon the effectivity of FC since the child is still a minor upon
the death of putative father, he is given 4 years after attaining the age of majority to file an action to claim filiation. To rule otherwise is to
take away the vested rights of minors who could have filed suit on their own during the lifetime of their parents if not on account of their
minority.
DELA ROSA v. VDA de DAMIAN- There is a dual limitation in an action to claim illegitimate filiation; death of the putative parent and that
of the child if the action is based on the secondary proof of evidence. On the death of either, an action for illegitimate filiation can no
longer be filed.
VERCELES v. POSADA- Letters are declarations that lead nowhere but to the conclusion that he sired the child. These are private
handwritten instruments which does not require a separate action for judicial approval being a primary evidence of illegitimate filiation
DELA CRUZ v. GRACIA- Art. 176 provides that illegitimate children may use the surname of father if recognized by the latter in the
record of birth or final judgment or in a private handwritten instrument as amended by RA 9255. (1) this must be read in conjunction
with Art. 172 where the private handwritten instrument must be signed by the parent concerned. (2) However, strict compliance must
only be observed if the instrument is the lone proof presented or established, where as in this case, there are corroborative evidences to
support the private handwritten instrument, it would suffice for the action to prosper.
NEPOMUCENO v. LOPEZ- unsigned handwritten note
GOTARDO v. BULING- Filiation proceedings are usually filed not just to adjudicate paternity but also for such matters as support,
succession, or inheritance. Petitioner failed to substantiate his allegations of infidelity and insinuations of promiscuity as a matter of an
affirmative defense.
PERLA v. BARING- to prove open and continuous possession- there must be manifest intention to consider the child as his which cannot
be attributed to pure charity. It must be continuous, spontaneous, and uninterrupted.
SALAS v. MATUSALEM- CLB is not competent evidence of paternity w/o fathers hand in preparation for the certificate while BC can only
be considered as proof of administration of the sacrament and not necessarily a competent evidence of parentage.
AGUILAR v. SIASAT- SSS Form satisfies the requirement of proof of filiation and relationship to the spouses; by itself, it constitutes
admission of legitimate filiation in a public document or private handwritten instrument signed by the parent concerned.

Comment [KC8]:
Photographs are far from proofs; BC naming him
as father has scant evidentiary value because
there is no proof that he had a hand-in
preparation therein
Comment [KC9]:
RECOGNITION OF BACKPAY RIGHTS
-Admission in a public document contemplated
under Article 172 is one which is done purposely
executed as an admission of filiation and not as
obtaining in this case wherein the public
document was executed as an application for the
recognition of backpay.
Comment [KC10]: INCOME TAX RETURNS
-Are mere proofs of payment of the taxes due
and not a public document executed for the
purpose of admission as contemplated in the
primary proof
Comment [KC11]:
Action for support has to determine filiation first, it
being lodged on the obligation to support found in
Art. 195 in relation to Art. 195(4) pares of
illegitimate children and the legitimate/illegitimate
children of the latter.

RA 9255 (An ACT allowing illegitimate children to use the surname of the father- Revilla Law)
Rights of legitimate/illegitimate children
1. Surname legitimate and legitimated: surname of mother and father; illegitimate, 176 as amended by 9255
2. Succession legitimate and legitimated: those granted under CC; illegitimate is of the legitimate/legitimateds share
3. Support CPG /ACP but illegitimate is EP of the parent

LEGITIMATED CHILDREN
-

Who may be legitimated, when shall it take place

Effects of legitimation, rights of legitimated children
Impugning legitimation, its grounds and period to file action
RA 9858 (An ACT providing for the legitimation of children born to parents below marrying age)

ADOPTION
LAWS
1.
2.
3.
4.
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Family Code (Aug. 3, 1988)

RA 8043- Inter-Country Adoption Act (June 7, 1995)
RA 8552- Domestic Adoption Act of 1998 (Feb. 2, 1998)
RA 9523- An ACT requiring certification of DSWD to declare a child legally available for adoption
Distinguish FC, 8043, 8552
Cases:
1. TAMARGO v. CA
2. LAHOM v. SIBULO- The jurisdiction of the court is determined by the statute in force at the time of the commencement of the action. The
law governing at the time the petition for rescission of adoption was filed was already RA 8552 which removed the right of the adopters
to rescind the adoption as what was granted under the provisions of the FC. Hence, the only remedy is to disinherit the child in proper
cases. Adoption, being a statutory privilege cannot provide a vested right to allow retroactive effect. Even assuming the adopter still has
the right to revoke the decree of adoption, it is still subject to the 5year bar rule under the Rules of Court.
3. LANDINGIN v. REPUBLIC- Purpose of Consent:

Intended to protect the natural parental relationship from unwarranted interference or interlopers, and to insure the
opportunity to safeguard the best interest of the child. Clearly, the written consent of the natural parents is indispensable for
the validity of decree of adoption.

Comment [KC12]: There can be no retroactive

effect given to the decree of adoption for the
purpose of having the adopting parent as principally
liable and make an indispensable party to an action
filed due to a tort committed by a child where as in
this case, the child was still under the parental
authority and custody of the biological parents. It
would be unfair and unconscionable for them to be
held liable where they could not have foreseen and
prevented the tortious act committed by the child.

4.

5.

IN RE: PETITION FOR ADOPTION OF MICHELLE AND MICHAEL JUDE LIM

Purpose for joint adoption

Grounded on the concept of joint parental authority over the child which is the ideal situation

A child to be adopted is elevated to a status of that of a legitimate child, thus it is but natural to require the spouses to adopt
jointly
CASTRO v. GREGORIO

Under 47, Sec. 1 of the Rules of civil Procedure, a party may file an action with CA to annul judgments or final orders and
resolutions in civil actions of RTC. This remedy will only be available if ordinary remedies of new trial, appeal, petition for
relief or other appropriate remedies are no longer available through no fault of petitioner

Annulment of judgments may only be availed of when there is

1. Extrinsic Fraud (4yrs from discovery)
o
The other party was prevented from fully exhibiting his side of case by fraud or deception
2. Lack of jurisdiction (before estoppel/laches bar)

Joint adoption between the husband and wife is mandatory (cite rationale in Lim v. Lim-harmony between the spouses), cite
exceptions

Jose was ineligible to adopt due to lack of consent in adopting his illegitimate child

Distribution of property of adopted child if he/she dies intestate (190)

1. BARTOLOME v. SSS
HOLDING: certain rights still attach by virtue of the blood relation, so too should certain obligations, which, We rule, include the exercise
of parental authority, in the event of the untimely passing of their minor offsprings adoptive parent. We cannot leave undetermined the
fate of a minor child whose second chance ata better life under the care of the adoptive parents was snatched from him by deaths cruel
grasp. Otherwise, the adopted childs quality of life might have been better off not being adopted at all if he would only find himself
orphaned in the end. Thus, We hold that Cornelios death at the time of Johnsminority resulted in the restoration of petitioners parental
authority over the adopted child.

SUPPORT
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Concept and Characteristics: Comprises everything indispensable for sustenance, dwelling, clothing, medical attendance, education even beyond the
age of majority, and transportation to and from school or work. It is personal, intransmissible, not subject to attachment or execution, never fixed
and subject to the means of the giver and necessities of the recipient, demandable when needed, even when already emancipated or married.
Persons obliged to support each other, amount of support and its sources
o
Spouses
o
Legitimate Ascendants and Descendants
o
Parents and their legitimate children and the legitimate/illegitimate children of the latter
o
Parents and their illegitimate children and the legitimate/illegitimate children of the latter
o
Brothers and sisters whether full or half-blood except illegitimate siblings cease to be entitled for support where the necessity is due to a
cause imputable through his own fault or negligence.
Support pendent lite: if there is CPG, it is mandatory that the spouse and the children be supported from CPG. Except legal separation where the
guilty party cannot claim for support for such grounds for legal separation is a bar to such right by virtue of Art. 55
Order of preference if 2 or more persons are obliged to give support/ to receive support, exceptions: SDAB except child under PA v. Spouse
When is support demandable: demandable from the time the recipient gives it for sustenance, but shall not be made payable except upon judicial or
extrajudicial demands
Option of person/s obliged to give support: to pay the amount fixed or to receive and maintain the recipient in the dwelling of the obligor provided
there is no moral or legal bar to such.
Cases:
1. DE ASIS v. CA
2. GAN v. REYES- Judgments in actions for support are immediately final and executory. This is the exception to the general rule that filing
an appeal stays the execution of judgments. It would be a travesty of justice to rule otherwise for the lapse of time would not bring back
the lost opportunity for education or compensate the hunger suffered by the child for lack of food.
3. MANGONON v. CA
4. LIM v. LIM- When liability is triggered:

Although the obligation to provide support arising from PA ends upon the emancipation of the child, the same obligation
arising from spousal and general familial ties ideally lasts during the obligees lifetime. Also, while PA under Title IX pertains to
parents, passing to ascendants only upon its termination or suspension, the obligation to provide legal support passes on to
ascendants only upon default of the parents but also for the latters inability to provide sufficient support.

To hold otherwise would lead to an anomalous scenario of tolerating extreme material deprivation of children because of
parental inability to give adequate support even if ascendants one degree removed are more than able to fill the void.
5. DOLINA v. VALLECERA - 9262

If filiation is beyond question, support follows as a matter of obligation. Illegitimate children are entitled to support and
successional rights but their filiation must be duly proved.
6. LIM-LUA v. LUA

CA erred to have allowed the deduction of the value of 2 cars and maintenance costs from the support in arrears, as these
items were not indispensable to the sustenance of the family or keeping them alive.

Comment [KC13]: The policy of the law is

clear. In order to maintain harmony, there must
be a showing of notice and consent. This cannot
be defeated by mere procedural devices. In all
instances where it appears that a spouse attempts
to adopt a child out of wedlock, the other spouse
and other legitimate children must be personally
notified through personal service of summons. It
is not enough that they be deemed notified
through constructive service.

Comment [KC14]:
Section 20. Effects of Rescission. If the petition
[for rescission of adoption] is granted, the parental
authority of the adoptee's biological parent(s), if
known, or the legal custody of the Department shall
be restored if the adoptee is still a minoror
incapacitated. The reciprocal rights and obligations
of the adopter(s) and the adoptee to each other
shall be extinguished.
-The manner herein of terminating the adopters
parental authority, unlike the grounds for
rescission,23 justifies the retention of vested
rights and obligations between the adopter and the
adoptee, while the consequent restoration of
parental authority in favor of the biological
parents, simultaneously, ensures that the adoptee,
who is still a minor, is not left to fend for himself
at such a tender age.
-BEST INTEREST OF THE CHILD
-Cite Art. 190, PA is severed, ties not entirely
eliminated.

Comment [KC15]: Manifestation of dismissing

the case is tantamount to a renunciation as they
severed the vinculum that gives the child the right
to claim support from the putative parent.
The right to receive support cannot be renounced or
transmitted to a third person. If paternity is at issue
in a case as a condition precedent to ones right to
be given support, then it must be judicially
determined and not left to the mercy of the
parents.
Comment [KC16]: 199- Order of Support
Remote relatives may e held to shoulder the
responsibility should the claimant prove that those
who are called upon to provide support do not have
the means to do so.
204 cannot be availed of since there is already a
moral or legal obstacle.

PARENTAL AUTHORITY(caring for and rearing of children for civic consciousness and efficiency, and the development of moral, mental, physical character and well-being)
-

Who exercises if
o
Both parents are live : joint PA over the persons and property of the children
o
In cases of annulment/legal separation: the court shall take into account relevant considerations especially the choice of the child unless
the parent chosen is unfit.
o
In case of remarriage: does not change, unless the court appoints a guardian to exercise PA over the person and property of the child
o
In case of absence or unsuitability: the parent present except when both are found to be DUA, substitute parental authority
Substitute PA :

Comment [KC17]:
Grandparents, brothers/sisters over 21, or actual
custodian over 21

Filial Privilege Rule, exceptions: No descendants shall be compelled, in a criminal case, to testify against his parents and grandparents, except
when such testimony is indispensable in a crime against the descendant or by one parent, against the other.
Special PA: concurrent with PA of the parents and rests on the theory that while the child is in the care and custody of the person or persons
exercising special PA, the parents temporarily relinquish PA over the child to the latter.
Liability of persons exercising parental and Special PA
Cases:
1. ESPIRITU v. CA: Tender age presumption. The task of choosing the parent to whom custody shall be awarded is not a ministerial task
simply done by determination of the age of the child. In determining parental custody, the court is mandated by FC to take into account
all relevant considerations and the choice of the child over 7 years of age, but the court may not be bound by the decision of the child if
the if it is found that the parent chosen is unfit. CHINMIND. The presumption is strong, but not conclusive, it can be overcome by
compelling reasons. Welfare of the child is the paramount consideration
2. SANTOS v. CA

The law vests on the mother and father joint parental authority over the persons of their common children. In case of absence
or death of either parent, the parent present shall continue exercising PA. Only in case of parents death, absence, or
unsuitability may substitute parental authority be exercised by the surviving parent

The legitimate father is still preferred over the grandparents despite the latters demonstrated love and affection, and even
wealth.
3. ESLAO v. CA

PA is a mass of rights and obligations w/c the law grants to parents for the purpose of childrens physical preservation and
development as well as cultivation of their intellect and the education of their heart and senses.

May not be transferred or renounced, attached being purely personal, it can be waived only through legal adoption,
guardianship, or voluntary surrender of the child to childrens homes, orphans, etc.

When a parent entrusts a minor to another even with a document, what is given is merely temporary custody and It does not
constitute renunciation of Parental Authority
4. LAXAMANA v. LAXAMANA

In controversies involving child care, custody, and control of their minor children, the contending parties stand on equal
footing before the court who shall make a selection according to the best interest of the child. The child if over 7 years of age
may be permitted to choose which parent he /she prefers to live with, but the court is not bound by such choice if the parent
chosen is unfit. I n all cases, the sole and foremost consideration is the physical, educational, social and moral welfare of
the child concerned taking into account the respective resources as well as the social and moral situations of the opposing
parents.
5. GUALBERTO v. GUALBERTO

Sexual preference and moral laxity alone do not prove parental neglect or incompetence. Not even the fact that a mother is a
prostitute or has been unfaithful to her husband would render her unfit to have custody of her minor child. To deprive the wife
of custody, the husband must clearly establish that her moral lapses have had an adverse effect on the welfare of the child or
have distracted the offending spouse from exercising parental care.
6. SALIENTES v. ABANILLA

Art. 213 of FC deals with judicial adjudication of custody and serves a guideline for the proper award of custody by the court.
Nothing in said provision disallows a father from seeing or visiting his child under 7 years of age. Petition for Habeas Corpus
may be resorted to in cases where rightful custody is withheld from the one entitled thereto. Although the couple is separated
in fact, the issue of custody has yet to be adjudicated by the court. Pending determination, both parents must exercise, PA and
are entitled to custody of the child.
7. GAMBOA-HIRSCH v. CA

Tender age presumption under 213 may be overcome only by a compelling evidence of the mothers unfitness. Here, the
mother was not shown to be unsuitable or grossly incapable of caring for her minor child. All told, no compelling reason has
been adduced to wrench the child from the mothers custody.
8. DACASIN v. DACASIN

The agreements object to establish a post-divorce joint custody regime between them over the minor child contravenes the
Philippine law which provides for a mandatory sole parental custody to be awarded to the mother if the child is less than 7
years of age. The agreement would be valid if the spouses have not divorced or separated because the law provides for joint
parental authority when spouses live together.
Rights and duties of parents to their unemancipated child; requisites
Guardian/administrator over the property of the unemancipated child; requisites
Cases:
1. Neri v. Heirs of Uy

GUARDIANSHIP- a father or mother, as the natural guardian of the minor under PA does not have the power to dispose or
encumber the property of the latter. Such power is granted by law only to a judicial guardian of wards property and even
then, only upon the courts prior approval set forth in the rules of court can there be a disposition or encumbrance
RA 10165 (The Foster Care Act of 2012)

Foster Family Case License is renewable every 3 years unless earlier revoked by DSWD
Default standard on child custody proceedings
Principle of BEST INTEREST OF THE CHILD; TENDER-AGE PRESUMPTION
Case on Special PA SCHOOL OF HOLY SPIRIT OF QC v. TAGUIAM

A teacher who stands in loco parentis to her pupils should make sure that children under his or her company are well
protected.

TERMINATION/SUSPENSION/DEPRIVATION OF PARENTAL AUTHORITY

-

Grounds- Permanent Termination- Death of Child/Parent; Emancipation

o
Other grounds for termination but may be revived: AGADA
Suspension and its Grounds: Civil Interdiction; Cruelty, Corrupting Orders, Compel begging, Acts of Lasciviousness
Permanent Deprivation: Sexual Abuse
RA 7610 CHILD ABUSE, EXPLOITATION AND DISCRIMINATION

EMANCIPATION

Comment [KC18]: School, Administrators,

Teachers
Individual Entity or Institution engaged in child care
-Principally and solidarily liable

Comment [KC19]: Default custodial regime or

mandatory maternal custody regime
Default standard on child custody proceedings is the
best interest of the child.
Comment [KC20]: Among others, to represent
them in matters involving their interests
Comment [KC21]: A father or mother, as the
natural guardian of the minor under PA does not
have the power to dispose or encumber the
property of the latter. Such power is granted by law
only to a judicial guardian of wards property and
even then, only with courts prior approval secured
in accordance with the proceedings set forth in the
Rules of Court.
-Administration includes all acts for the
preservation of the property and the receipt of
fruits according to the natural purpose of the
thing. Any act of disposition or alienation, or any
reduction in the substance of the patrimony of
the child, exceeds the limits of administration.
Thus, a father or mother, as a natural guardian of
the minor under PA, does not have the power to
dispose or encumber the property of the latter.

TITLE XI Rules of Procedure: Summary Proceedings in FC: Immediately final and executory
1.
2.

3.

Republic v. CA:

entrusting disadvantaged children and declaration of presumptive death are made by a petition in a summary proceeding in
the family code and not a special proceeding under the Revised rules of Court
Republic v. LORINO:

Judgments under summary proceedings in the family code are immediately final and executory hence, no appellate court can
acquire jurisdiction upon motion on appeal to an order which by express provision of the law, immediately final and
executory. Appeal is not a natural right nor is a part of due process, for it is a mere statutory privilege.
Republic v. TANGO

No appeal can be had of the trial courts judgment in a summary proceeding for the declaration of presumptive death of an
absent spouse under 41, FC. An appeal for certiorari to question abuse of discretion amounting to lack of jurisdiction may be
resorted to as a remedy.

NEW CIVIL CODE

SURNAMES
-

Cases
1.

2.

3.

In re: Petition of Julian Lin Carulasan Wang

Middle names serve to identify the maternal lineage or affiliation of a person and further distinguish him from others who may
have the same given name and surname as he has. When an illegitimate child is legitimated by subsequent marriage of his
parents or acknowledged by the father in a public instrument or a private handwritten instrument, he then bears both his
mothers surname as his middle name and his fathers surname as his surname, reflecting his status as a legitimated child or an
acknowledged natural child. The registered name of a legitimate, legitimated and recognized illegitimate child thus contains a
given name, a middle name and a surname.

Before the registered name of a person may be changed he must show proper or reasonable cause, or any compelling reason
that may justify such change. Among the grounds are:
1. when the name is ridiculous, dishonorable or extremely difficult to write or pronounce;
2. when the change results as a legal consequence as in legitimation;
3. when the change will avoid confusion;
4. when one has continuously used and been known since childhood by a Filipino name and is unaware of alien
parentage;
5. a sincere desire to adopt a Filipino name to erase signs of former alien parentage, all in good faith and without
prejudicing anybody; and
6. when the surname causes embarrassment and there is no showing that the desired change of name is for a
fraudulent purpose or that the change of name would prejudice public interest.

Comment [KC22]:
In the case at bar, the only reason advanced by
Julian for dropping his middle name is
convenience. How such change of name would
make his integration into Singaporean society
easier and convenient is not clearly established.
That the continued use of his middle name would
cause confusion and difficulty does not constitute
proper and reasonable cause to drop it from his
registered complete name.

Republic v. CA and VIcencio

-A legitimate child generally bears the surname of the father. It must be stressed that a change of name is a privilege not a
matter of right, addressed to the sound discretion of the court.

-More confusion with grave legal consequences could arise if a legitimate child is allowed to use the surname of the stepfather,
who did not legally adopt her.

-While previous decisions have allowed children to bear the surname of their respective stepfather even without the benefit of
adoption such as in the cases of Calderon and Llaneta, wherein the Court allowed the concerned child to adopt the surname of
the stepfather, in those cases the children were not of legitimate parentage.
In the Matter of Adoption of Nathy Astorga Garcia

As correctly submitted by the parties, there is no law regulating the use of a middle name. Even Article 176 of the family Code,
as amended by RA 9255, is silent as to what middle name a child may use. The middle name or the mothers surname is only
considered in Article 375 (1) of the Civil Code, in case there is identity of names and surnames between ascendants and
descendants, in which case, the middle name or the mothers name shall be added.

Comment [KC23]:

Notably, the law is likewise silent as to what middle name an adoptee may use.
Adoption is defined as the process of making a child, whether related or not to the adopter, possess in general, the rights
accorded to a legitimate child. Being a legitimate child by virtue of her adoption, it follows that Stephanie is entitled to all the
rights provided by law to a legitimate child without discrimination of any kind, including the right to bear the surname of her
mother and father.

Stephanies continued use of her mothers surname as her middle name will maintain her maternal lineage.

It is to be noted that Article 189 (3) of the Family Code and Section 18, Article V of RA 8552 provide that the adoptee remains
an intestate heir of his/her biological parent. To allow Stephanie to use her mothers surname as her middle name will not
only sustain her continued loving relationship with her mother but will also eliminate the stigma of her illegitimacy.

It is a settled rule that adoption statutes, being humane and salutary, should be liberally construed to carry out the beneficent
purposes of adoption. The interests and welfare of the adopted child are of primary and paramount consideration, hence,
every reasonable intendment should be sustained to promote and fulfill the noble and compassionate objectives of the law.
Republic v. Capote

THE SUBJECT OF RIGHTS MUST HAVE A FIXED SYMBOL FOR INDIVIDUALIZATION WHICH SERVES TO DISTINGUISH HIM
FROM ALL OTHERS; THIS SYMBOL IS HIS NAME.

When Giovanni was born in 1982, the provision that will apply is Article 366 of the Civil Code: A natural child acknowledged
by both parents shall principally use the surname of the father. If recognized by only one of the parents, a natural child shall
employ the surname of the recognizing parent. Based on this provision, Giovanni should have carried his mothers surname
from birth. The records do not reveal any act or intention on the part of Giovannis putative father to actually recognize him.

Meanwhile Art. 176 of the Family Code which repealed, among others, Art. 366 of the Civil Code provides:

Illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled to
support in conformity with this Code. X x x x x. Applying these laws, an illegitimate child whose filiation is not recognized by
the father bears only a given name and his mothers surname, and does not have a middle name. The name of the unrecognized
illegitimate child therefore identifies him as such. It is only when the illegitimate child is legitimated by the subsequent

4.

marriage of his parents or acknowledged by the father in a public document or private handwritten instrument that he bears
both his mothers surname as his middle name and his fathers surname as his surname, reflecting his status as a legitimated
or an acknowledged child.
1. Rule 108- correction of entries (summary proceeding)
2. Rule 103- special proceedings for change of name (must be adversarial)
Adversarial proceeding- where a party seeking relief has given legal warning to the other party and afforded the latter an
opportunity to contest it.Respondent gave notice of the petition through publication as required by the rules. With this, all
interested parties were deemed notified and the whole world considered bound by the judgment therein.
Remo v. DFA Secretary

5.

The word may in Article 370 indicates that the use of the husbands surname by the wife is permissive rather than obligatory.
A married woman has an option, not a duty, to use the surname of the husband in any of the ways provided by Article 370 of the
NCC. She is therefore allowed to use not only any of the 3 names provided in Article 370, but also her maiden name upon
marriage. She is not prohibited from continuously using her maiden once she is married because when a woman marries, she
does not change her name but only her civil status. This interpretation is consonance with the principle that surnames indicate
descent.
The conflict between
1. A. 370 of the NCC and
2. Section 5(d) of RA 8239 (Philippine Passport Act of 1996), is more imagined than real.
3. RA 8239 including its implementing rules and regulations,
a. does not prohibit a married woman from using her maiden name in her passport.
b. However, once a married woman opted to adopt her husbands surname in her passport, she may not
revert to the use of her maiden name except
i. (1) death of the husband,
ii. (2) divorce,
iii. (3) annulment, or
iv. (4) nullity of marriage.
Since Remos marriage to her husband subsists, she may not resume her maiden name in the replacement passport. A married
womans reversion to the use of her maiden name must be based only on the severance of marriage.
If we allow petitioners present request definitely nothing prevents her in the future from requesting to the use of her husb ands
surname. Undue confusion and inconsistency in the records of passport holders will arise.

6. Grande v. Antonio
RA 9048
RA 9255
RA 10172

ABSENCE
-

Period if with administrator and if without

Presumption of Death

FUNERAL
CIVIL REGISTER
4.

Acts, events, judicial decrees entered in the Civil Register

Probative Value of books making the Civil Register
Liability, Defenses of Civil Registrar in case of unauthorized alteration of books
Silverio v. Republic

No law allows the change of entry in the birth certificate as to sex on the ground of sex reassignment.

The change of sex is not a mere clerical or typographical error. It is substantial change for which the applicable procedure is
Rule 108 of the Rules of Court.The entries envisaged in Article 412 of the Civil Code and correctable under Rule 108 of the
Rules of Court are those provided for in Articles 407 and 408 of the Civil Code.

The acts, events or factual errors contemplated under Article 407 of the Civil Code include even those that occur after birth.
However, no reasonable interpretation of the provision can justify the conclusion that it covers the correction on the ground of
sex reassignment.

To correct simply means to make or set aright; to remove the faults or error from while to change means to replace
something with something else of the same kind or with something that serves as a substitute. The birth certificate of the
petitioner contained no error. All entries therein including those corresponding to his first name and sex, were all correct. No
correction is necessary.

-Sex reassignment is not among those acts or events mentioned in Article 407. Neither is it recognized nor even mentioned by
any law, expressly or impliedly.

-The status of a person in law includes all his personal qualities and relations, more or less permanent in nature, not
ordinarily terminable at his own will, such as his being legitimate or illegitimate, or his being married or not. X x x. (Salonga,
Private International Law, 1995 Edition).

-A persons sex is an essential factor in marriage and family relations. It is a part of a persons legal capacity and civil status.

-The sex of a person is determined at birth, visually done by the birth attendant by examining the genitals of the infant.
Considering that there is no law legally recognizing sex reassignment, the determination of a persons sex made at the time of
his or her birth, if not attended by error, is immutable.

Comment [KC24]: The general rule is that an

illegitimate child shall use the surname of his or
her mother. The exception provided by RA 9255 is,
in case his or her filiation is expressly recognized
by the father through the record of birth appearing
in the civil register or when an admission in a
public document or private handwritten
instrument is made by the father.
An acknowledged illegitimate child is under no
compulsion to use the surname of his illegitimate
father. There was no legal basis for the CFI to
order the change of the surname of respondent.
The order or ruling contravenes the explicit and
unequivocal provision of Art 176 of the FC
amended by RA 9255. Art 176 gives illegitimate
children the right to decide if they want to use the
surname of their father or not. It is not the
father(herein respondent) or the mother
(petitioner) who is granted by law the right tot
dictate the surname of their illegitimate children.
Nothing is more settled than that when the law is
clear and free from ambiguity.
Comment [KC25]:

-While petitioner may have succeeded in altering his body and appearance through the intervention of modern surgery, no law
authorizes the change of entry as to sex in the civil registry for that reason.
Republic v. Cagandahan
Corpuz v. Sto. Tomas

5.
6.

while the law requires the entry of the divorce decree in the civil registry, the law and the submission of the decree by themselve s do not ipso facto authorize
the decrees registration. The law should be read in relation with the requirement of a judicial recognition of the foreign judgment before it can be given res
judicata effect.
In the context of the present case, no judicial order as yet exists recognizing the foreign divorce decree. Thus, the Pasig C ity Civil Registry Office acted
totally out of turn and without authority of law when it annotated the Canadian divorce decree on Gerbert and Daisylyns marriage certificate, on the
strength alone of the foreign decree presented by Gerbert.
-

Evidently, the Pasig City Civil Registry Office was aware of the requirement of a court recognition, as it cited NSO Circular No. 4, series of 1982,36 and
Department of Justice Opinion No. 181, series of 198237 both of which required a final order from a competent Philippine court before a foreign
judgment, dissolving a marriage, can be registered in the civil registry, but it, nonetheless, allowed the registration of the decree. For being contrary to
law, the registration of the foreign divorce decree without the requisite judicial recognition is patently void and cannot produce any legal effect.

the recognition that the RTC may extend to the Canadian divorce decree does not, by itself, authorize the cancellation of the entry in the civil registry.
A petition for recognition of a foreign judgment is not the proper proceeding, contemplated under the Rules of Court, for the cancellation of entries in
the civil registry.
Article 412 of the Civil Code declares that "no entry in a civil register shall be changed or corrected, without judicial order." The Rules of Court
supplements Article 412 of the Civil Code by specifically providing for a special remedial proceeding by which entries in the civil registry may be
judicially cancelled or corrected.
Rule 108 of the Rules of Court sets in detail the jurisdictional and procedural requirements that must be complied with before a judgment,
authorizing the cancellation or correction, may be annotated in the civil registry. It also requires, among others,
o
that the verified petition must be filed with the RTC of the province where the corresponding civil registry is located;38
o
that the civil registrar and all persons who have or claim any interest must be made parties to the proceedings;39 and
o
that the time and place for hearing must be published in a newspaper of general circulation.40
As these basic jurisdictional requirements have not been met in the present case, we cannot consider the petition Gerbert fil ed with the RTC as one
filed under Rule 108 of the Rules of Court.
We hasten to point out, however, that this ruling should not be construed as requiring two separate proceedings for the registration of a foreign
divorce decree in the civil registry one for recognition of the foreign decree and another specifically for cancellation of the entry under Rule 108 of
the Rules of Court. The recognition of the foreign divorce decree may be made in a Rule 108 proceeding itself, as the object of special proceedings
(such as that in Rule 108 of the Rules of Court) is precisely to establish the status or right of a party or a particular fac t. Moreover, Rule 108 of the
Rules of Court can serve as the appropriate adversarial proceeding41 by which the applicability of the foreign judgment can be measured and tested
in terms of jurisdictional infirmities, want of notice to the party, collusion, fraud, or clear mistake of law or fact.

7.
8.
9.

Iwasawa v. Gangan
Republic v. Olaybar
Respondents name was used by an unknown person to contract marriage with a Korean National. Republic moved for reconsiderati on when
respondents prayer for correction or cancellation of entries was granted on the ff grounds
a. Rule 108 of the Revised Rules of Court applies only when there are errors in the entries sought to be cancelled or corrected
b. Granting the cancellation of all the entries in the wife portion of the alleged marriage contract is in effect declaring th e marriage void ab
initio
10. Petitioner claims
a. that there are no errors in the entries sought to be cancelled or corrected, because the entries made in the Cert. of Marriag e are the ones
provided for by the person who appeared and represented herself as respondent.
b. That petition instituted is actually a petition for declaration of nullity of marriage in the guise of a Rule 108 proceeding.
w/n the cancellation of entries in the marriage contract which, in effect, nullifies the marriage may be undertaken in a Rule 108 proceeding.
11. Rule 108 of the Rules of Court
a. Sec. 1 Who may file petition- any person interested in any act, event, order or decree concerning the civil status of persons which has been
recorded in the civil register, may file a verified petition for the cancellation or correction of any entry relating thereto, with the RTC of the
province where the corresponding civil registry is located.
b. Sec. 2 Entries subject to cancellation or correction.
i. Upon good and valid grounds the ff entries in the civil register may be cancelled or corrected
1. Birth
2. Marriage
3. Death
4. Legal separation
5. Judgment of annulments of marriage
6. Judgment declaring marriage void
7. Legitimations
8. Adoptions
9. Acknowledgments of natural children
10. Naturalization
11. Election, loss or recovery of citizenship
12. Civil interdiction
13. Judicial determination of filiation
14. Voluntary emancipation of a minor
15. Changes of name
c.
Sec. 3 Parties
i. When cancellation or correction of an entry in the civil register is sought, the civil registrar and all persons who have or claim any
interest which would be affected thereby shall be made parties to the proceeding.
d. Sec. 4 Notice and publication

Comment [KC26]: We are of the view that

where the person is biologically or naturally
intersex the determining factor in his gender
classification would be what the individual, like
respondent, having reached the age of majority,
with good reason thinks of her/his sex.
Respondent here thinks of himself as a male and
considering that his body produces high levels of
androgen there is preponderant biological support
for considering him as being male. Sexual
development in cases of intersex persons makes
the gender classification at birth inconclusive. It is
at maturity that the gender of such persons, like
respondent, is fixed. The Court affirms as valid
and justified the respondents position and his
personal judgment of being a male.
As for respondents change of name under Rule
103, this Court has held that a change is not a
matter of right but of judicial discretion, to be
exercised in the light of the reasons adduced and
the consequences that will follow. Considering the
consequence that respondents change of name
merely recognizes his preferred gender, we find
merit in respondents change of name. Such a
change will conform with the change of the entry
of his birth certificate from female to male.

Comment [KC27]: -There is no question that

the documentary evidences submitted by
petitioner are all public documents.
-provided in the Civil Code: Art. 410.
oThe books making up the civil register and
all documents relating thereto shall be
considerered public documents and shall be
prima facie evidence of the facts therein
contained.
- As public documents, they are admissible in
evidence even without further proof of their due
execution and genuinenesss. Thus, the RTC
erred when it disregarded said documents on
the sole ground that the petitioner did not
present the records custodian of the NSO who
issued them to testify on their authenticity and
due execution since proof of authenticity and
due execution was not necessary anymore.
Moreover, not only are said documents
admissible, they deserve to be given evidentiary
weight because they constitute prima facie
evidence of the facts stated therein.
oIn the instant case, the facts therein remain
unrebutted since neither the Private
respondents not the public prosecutor
presented evidence to the contrary.

i.

Upon filing the petition, the court shall, by an order, fix the time and place for the hearing of the same, and c ause reasonable
notice thereof to be given to the persons named in the petition. The court shall also cause the order to be published once a
week for 3 consecutive weeks in a newspaper of general circulation in the province
e. Sec. 5 Opposition
i. The civil registrar and any person having or claiming any interest under the entry whose cancellation or correction is sought may,
within 15 days from notice of the petition, or from the last date of publication of such notice, file his opposition thereto
f.
Sec. 6 Expediting Proceedings
i. The court in which the proceedings is brought may make orders expediting the proceedings, and may also grant preliminary
injunction for the preservation of the rights of the parties pending such proceedings.
g. Sec. 7 Order
i. After hearing, the court may either dismiss the petition or issue an order granting the cancellation or correction prayed for. In
either case, a certified copy of the judgment shall be served upon the civil registrar concerned who shall annotate the same in
his record.
12. Rule 108 of the RoC provides for the procedure of cancellation or correction of entries in the civil registry. The proceedings may either be summary or
adversary.
a.
If the correction is clerical, then the procedure to be adopted is summary.
b. If the rectification affects the civil status, citizenship or nationality of a party, it is deemed substantial, and the procedure to be adop ted is
adversary.
13. An appropriate adversary suit or proceeding is one where the TC has conducted proceedings where all relevant fac ts have been fully and properly
developed, where opposing counsel have been given opportunity to demolish the opposite partys case, and where the evidence has been thoroughly
weighed and considered.
14. It is true that in special proceedings, formal pleadings and hearing may be dispensed with, and the remedy is granted upon mere application or
motion. However, a special proceeding is not always summary. The
procedure laid down in Rule 108 is NOT a summary proceeding per se. It
requires publication of the petition; it mandates the inclusion as parties of all persons who may claim interest which would be affected by the
cancellation or correction; it also requires the civil registrar and any person in interest to file their opposition, if any; and it states that although the
court may make orders expediting the proceedings, it is after hearing that the court shall either dismiss the petition or iss ue an order granting the
same. Thus, as long as the procedural requirements in Rule 108 are followed, it is the appropriate adversary proceeding to effect substantial
corrections and changes in entries of the civil register.
15. While we maintain that Rule 108 cannot be availed of to determine the validity of marriage, we cannot nullify the proceedings before the TC where all
the parties had been given the opportunity to contest the allegations of respondent; the procedures were followed, and all th e evidence of the parties
had already been admitted and examined.
16. In allowing the correction of the record of the subject certificate of marriage by cancelling the wife portion thereof, the tria l court did not in any way
declare the marriage void as there was no marriage to speak of.