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1.

REMEDIAL LAW; CIVIL PROCEDURE; CIVIL ACTION AND


SPECIAL PROCEEDINGS; DISTINGUISHED. Section 3, Rule 1
of the 1997 Rules of Civil Procedure defines civil action and
special proceedings, in this wise: ". . . a) A civil action is one
by which a party sues another for the enforcement or
protection of a right, or the prevention or redress of a wrong.
"A civil action may either be ordinary or special. Both are
governed by the rules for ordinary civil actions, subject to
specific rules prescribed for a special civil action.". . . "c) A
special proceeding is a remedy by which a party seeks to
establish a status, a right or a particular fact." As could be
gleaned from the foregoing, there lies a marked distinction
between an action and a special proceeding. An action is a
formal demand of one's right in a court of justice in the
manner prescribed by the court or by the law. It is the method
of applying legal remedies according to definite established
rules. The term "special proceeding" may be defined as an
application or proceeding to establish the status or right of a
party, or a particular fact. Usually, in special proceedings, no
formal pleadings are required unless the statute expressly so
provides. In special proceedings, the remedy is granted
generally upon an application or motion." Citing American
Jurisprudence, a noted authority in Remedial Law expounds
further. "It may accordingly be stated generally that actions
include those proceedings which are instituted and
prosecuted according to the ordinary rules and provisions
relating to actions at law or suits in equity, and that special
proceedings include those proceedings which are not ordinary
in this sense, but is instituted and prosecuted according to
some special mode as in the case of proceedings commenced
without summons and prosecuted without regular pleadings,
which are characteristics of ordinary actions. . . . A special
proceeding must therefore be in the nature of a distinct and
independent proceeding for particular relief, such as may be
instituted independently of a pending action, by petition or
motion upon notice." Applying these principles, an action for
reconveyance and annulment of title with damages is a civil
action, whereas matters relating to settlement of the estate of
a deceased person such as advancement of property made by
the decedent, partake of the nature of a special proceeding,
which concomitantly requires the application of specific rules
as provided for in the Rules of Court.
2. ID.; SPECIAL PROCEEDINGS; SETTLEMENT OF ESTATE OF
DECEASED PERSON; JURISDICTION OF PROBATE COURT;
INCLUDES QUESTIONS AS TO ADVANCEMENT MADE OR
ALLEGED TO HAVE BEEN MADE BY THE DECEASED TO ANY
HEIRS; APPLICATION IN CASE AT BAR. Matters which involve
settlement and distribution of the estate of the decedent fall
within the exclusive province of the probate court in the
exercise of its limited jurisdiction. Thus, under Section 2, Rule
90 of the Rules of Court, questions as to advancement made
or alleged to have been made by the deceased to any heir
may be heard and determined by the court having jurisdiction
of the estate proceedings; and the final order of the court
thereon shall be binding on the person raising the questions
and on the heir. While it may be true that the Rules used the
word "may", it is nevertheless clear that the same provision
contemplates a probate court when it speaks of the "court
having jurisdiction of the estate proceedings". Corollarily, the
Regional Trial Court in the instant case, acting in its general
jurisdiction, is devoid of authority to render an adjudication
and resolve the issue of advancement of the real property in
favor of herein petitioner Natcher, inasmuch as Civil Case No.
71075 for reconveyance and annulment of title with damages
is not, to our mind, the proper vehicle to thresh out said
question. Moreover, under the present circumstances, the RTC
of Manila, Branch 55 was not properly constituted as a
probate court so as to validly pass upon the question of
advancement made by the decedent Graciano Del Rosario to
his wife, herein petitioner Natcher.

3. ID.; ID.; ID.; ID.; DOES NOT INCLUDE DECISION ON


QUESTION OF TITLE OR OWNERSHIP; EXCEPTION;
REQUIREMENTS THEREOF. Analogously, in the train of
decisions, this Court has consistently enunciated the long
standing principle that although generally, a probate court
may not decide a question of title or ownership, yet if the
interested parties are all heirs, or the question is one of
collation or advancement or the parties consent to the
assumption of jurisdiction by the probate court and the rights
of third parties are not impaired, then the probate court is
competent to decide the question of ownership. Similarly
in Mendoza vs. Teh, we had occasion to hold: "In the present
suit, no settlement of estate is involved, but merely an
allegation seeking appointment as estate administratrix which
does not necessarilyinvolve settlement of estate that would
have invited the exercise of the limited jurisdiction of a
probate court. Of equal importance is that before any
conclusion about the legal share due to a compulsory heir
may be reached, it is necessary that a certain steps be taken
first. The net estate of the decedent must be ascertained, by
deducing all payable obligations and charges from the value
of the property owned by the deceased at the time of his
death; then, all donations subject to collation would be added
to it. With the partible estate thus determined, the legitime of
the compulsory heir or heirs can be established; and only
thereafter can it be ascertained whether or not a donation had
prejudiced the legitimes. cCAIES
||| (Natcher v. Court of Appeals, G.R. No. 133000, [October 2,
2001], 418 PHIL 669-680)

1. REMEDIAL LAW; ACTIONS; DISTINCTION BETWEEN AN


ORDINARY ACTION AND A SPECIAL PROCEEDING.
Elucidating the crucial distinction between an ordinary action
and a special proceeding, Chief Justice Moran states: Action is
the act by which one sues another in a court of justice for the
enforcement or protection of a right, or the prevention or
redress of a wrong while special proceeding is the act by
which one seeks to establish the status or right of a party, or a
particular fact. Hence, action is distinguished from special
proceeding in that the former is a formal demand of a right by
one against another, while the latter is but a petition for a
declaration of a status, right or fact. Where a party-litigant
seeks to recover property from another, his remedy is to file
an action. Where his purpose is to seek the appointment of a
guardian for an insane, his remedy is a special proceeding to
establish the fact or status of insanity calling for an
appointment of guardianship.
2. ID.; ID.; ID.; PETITION FOR LIQUIDATION OF AN INSOLVENT
CORPORATION UNDER REPUBLIC ACT NO. 265 (CENTRAL BANK
ACT), A SPECIAL PROCEEDING. Considering this distinction,
a petition for liquidation of an insolvent corporation should be
classified a special proceeding and not an ordinary action.
Such petition does not seek the enforcement or protection of
a right nor the prevention or redress of a wrong against a
party. It does not pray for affirmative relief for injury arising
from a party's wrongful act or omission nor state a cause of
action that can be enforced against any person. What it seeks
is merely a declaration by the trial court of the corporation's
insolvency so that its creditors may be able to file their claims
in the settlement of the corporation's debts and obligations.
Put in another way, the petition only seeks a declaration of
the corporation's state of insolvency and the concomitant
right of creditors and the order of payment of their claims in
the disposition of the corporation's assets.
3. ID.; ID.; ID.; ID.; DOES NOT RESEMBLE PETITION FOR
INTERPLEADER. Contrary to the rulings of the Court of
Appeals' Fourteenth Division, liquidation proceedings do not
resemble petitions for interpleader. For one, an action for

interpleader involves claims on a subject matter against a


person who has no interest therein. This is not the case in a
liquidation proceeding where the Liquidator, as representative
of the corporation, takes charge of its assets and liabilities for
the benefit of the creditors. He is thus charged with insuring
that the assets of the corporation are paid only to rightful
claimants and in the order of payment provided by law.
4. ID.; ID.; ID.; ID.; RESEMBLES A PROCEEDING FOR
SETTLEMENT OF ESTATE OF DECEASED PERSONS. Rather, a
liquidation proceeding resembles the proceeding for the
settlement of estate of deceased persons under Rules 73 to
91 of the Rules of Court. The two have a common purpose:
the determination of all the assets and payment of all the
debts and liabilities of the insolvent corporation or the estate.
The Liquidator and the administrator or executor are both
charged with the assets for the benefit of the claimants. The
court's concern is with the declaration of creditors and their
rights and the determination of their order of payment.
Furthermore, as in the settlement of estates, multiple appeals
are allowed in proceedings for liquidation of an insolvent
corporation.
10. REMEDIAL LAW; SPECIAL PROCEEDINGS; LIQUIDATION OF
INSOLVENT BANK; APPEAL; NOTICE OF APPEAL AND MOTION
FOR ADDITIONAL TIME TO SUBMIT RECORD ON APPEAL, FILED
JOINTLY BY THE OFFICE OF THE SOLICITOR GENERAL AND
LAWYERS OF PDIC. Finally the Union contends that the
notice of appeal and motion for extension of time to file the
record on appeal filed in behalf of the Central Bank was not
filed by the Office of the Solicitor General as counsel for the
Central Bank. This contention has no merit. On October 22,
1992, as Assistant Solicitor General Cecilio O. Estoesta
informed the trial court on March 27, 1992, the OSG had
previously authorized lawyers of the PDIC to prepare and sign
pleadings in the case. Conformably thereto the Notice of
Appeal and the Motion for Additional Time to Submit Record
on Appeal filed were jointly signed by Solicitor Reynaldo I.
Saludares in behalf of the OSG and by lawyers of the
PDIC.||| (Pacific Banking Corp. Employees Organization v.
Court of Appeals, G.R. No. 109373, 112991, [March 20, 1995],
312 PHIL 578-597)

1. REMEDIAL LAW; SPECIAL PROCEEDINGS; SETTLEMENT OF


ESTATE OF A DECEASED PERSON; WHERE SPECIAL
PROCEEDINGS HAD BEEN INSTITUTED BUT HAD BEEN FINALLY
CLOSED AND TERMINATED, OR IF A PUTATIVE HEIR HAS LOST
THE RIGHT TO HAVE HIMSELF DECLARED IN THE SPECIAL
PROCEEDINGS AS CO-HEIR AND HE CAN NO LONGER ASK FOR
ITS RE-OPENING, AN ORDINARY CIVIL ACTION CAN BE FILED
FOR HIS DECLARATION AS HEIR IN ORDER TO BRING ABOUT
THE ANNULMENT OF THE PARTITION, DISTRIBUTION OR
ADJUDICATION OF PROPERTIES BELONGING TO THE
DECEASED. The common doctrine in Litam, Solivio and
Guilas in which the adverse parties are putative heirs to the
estate of a decedent or parties to the special proceedings for
its settlement is that if the special proceedings are pending,
or if there are no special proceedings filed but there is, under
the circumstances of the case, a need to file one, then the
determination of, among other issues, heirship should be
raised and settled in said special proceedings. Where special
proceedings had been instituted but had been finally closed
and terminated, however, or if a putative heir has lost the
right to have himself declared in the special proceedings as
co-heir and he can no longer ask for its re-opening, then an
ordinary civil action can be filed for his declaration as heir in
order to bring about the annulment of the partition or
distribution or adjudication of a property or properties
belonging to the estate of the deceased.

2. ID.; ID.; ID.; ID.; CASE AT BAR. In the case at bar,


respondent, believing rightly or wrongly that she was the sole
heir to Portugal's estate, executed on February 15, 1988 the
questioned Affidavit of Adjudication under the second
sentence of Rule 74, Section 1 of the Revised Rules of Court.
Said rule is an exception to the general rule that when a
person dies leaving a property, it should be judicially
administered and the competent court should appoint a
qualified administrator, in the order established in Sec. 6, Rule
78 in case the deceased left no will, or in case he did, he
failed to name an executor therein. Petitioners claim,
however, to be the exclusive heirs of Portugal. A probate or
intestate court, no doubt, has jurisdiction to declare who are
the heirs of a deceased. It appearing, however, that in the
present case the only property of the intestate estate of
Portugal is the Caloocan parcel of land, to still subject it, under
the circumstances of the case, to a special proceeding which
could be long, hence, not expeditious, just to establish the
status of petitioners as heirs is not only impractical; it is
burdensome to the estate with the costs and expenses of an
administration proceeding. And it is superfluous in light of the
fact that the parties to the civil case subject of the present
case, could and had already in fact presented evidence before
the trial court which assumed jurisdiction over the case upon
the issues it defined during pre-trial. In fine, under the
circumstances of the present case, there being no compelling
reason to still subject Portugal's estate to administration
proceedings since a determination of petitioners' status as
heirs could be achieved in the civil case filed by petitioners,
the trial court should proceed to evaluate the evidence
presented by the parties during the trial and render a decision
thereon upon the issues it defined during pre-trial.
||| (Portugal v. Portugal-Beltran, G.R. No. 155555, [August 16,
2005], 504 PHIL 456-471)

1. REMEDIAL LAW; SPECIAL PROCEEDINGS; SETTLEMENT OF


ESTATE; COMPETENT COURT SHALL APPOINT A QUALIFIED
ADMINISTRATOR IN CASES WHERE DECEDENT'S ESTATE SHALL
BE JUDICIALLY ADMINISTERED; EXCEPTIONS. When a person
dies intestate, or, if testate, failed to name an executor in his
will or the executor so named is incompetent, or refuses the
trust, or fails to furnish the bond required by the Rules of
Court, then the decedent's estate shall be judicially
administered and the competent court shall appoint a
qualified administrator in the order established in Section 6 of
Rule 78. The exceptions to this rule are found in Sections 1
and 2 of Rule 74 which provide: "SECTION 1. Extrajudicial
settlement by agreement between heirs. If the decedent
left no will and no debts and the heirs are all of age or the
minors are represented by their judicial or legal
representatives duly authorized for the purpose, the parties
may, without securing letters of administration, divide the
estate among themselves as they see fit by means of a public
instrument filed in the office of the register of deeds, and
should they disagree, they may do so in an ordinary action of
partition. SEC. 2. Summary settlement of estates of small
value. Whenever the gross value of the estate of a
deceased person, whether he died testate or intestate, does
not exceed ten thousand pesos, and that fact is made to
appear to the Regional Trial Court having jurisdiction of the
estate by the petition of an interested person and upon
hearing, which shall be held not less than one (1) month nor
more than three (3) months from the date of the last
publication of a notice which shall be published once a week
for three (3) consecutive weeks in a newspaper of general
circulation in the province, and after such other notice to
interested persons as the court may direct, the court may
proceed summarily, without the appointment of an executor
or administrator, and without delay, to grant, if proper,

allowance of the will, if any there be, to determine who are


the persons legally entitled to participate in the estate and to
apportion and divide it among them after the payment of such
debts of the estate as the court shall then find to be due; and
such persons, in their own right, if they are of lawful age and
legal capacity, or by their guardians or trustees legally
appointed and qualified, if otherwise, shall thereupon be
entitled to receive and enter into the possession of the
portions of the estate so awarded to them respectively. The
court shall make such order as may be just respecting the
costs of the proceedings, and all orders and judgments made
or rendered in the course thereof shall be recorded in the
office of the clerk, and the order of partition or award, if it
involves real estate, shall be recorded in the proper register's
office." The heirs succeed immediately to all of the rights and
properties of the deceased at the moment of the latter's
death. Section 1, Rule 74 of the Rules of Court, allows heirs to
divide the estate among themselves without need of delay
and risks of being dissipated. When a person dies without
leaving pending obligations, his heirs are not required to
submit the property for judicial administration, nor apply for
the appointment of an administrator by the court.
2. ID.; SUMMARY SETTLEMENT OF ESTATE; WHEN ORDINARY
ACTION FOR PARTITION MAY BE RESORTED TO; CASE AT BAR.
The basis for the trial court's order converting an action for
letters of administration to one for judicial partition is Section
1, Rule 74 of the Rules of Court. It provides that in cases
where the heirs disagree as to the partition of the estate and
no extrajudicial settlement is possible, then an ordinary action
for partition may be resorted to, as in this case. This Court has
held that where the more expeditious remedy of partition is
available to the heirs, then the heirs or the majority of them
may not be compelled to submit to administration
proceedings. The trial court appropriately converted
petitioner's action for letters of administration into a suit for
judicial partition, upon motion of the private
respondents. TaCDAH
||| (Avelino v. Court of Appeals, G.R. No. 115181 (Resolution),
[March 31, 2000], 385 PHIL 1014-1022)

There are two ways by which partition can take place under
Rule 69: by agreement under Section 2 11 and through
commissioners when such agreement cannot be reached,
under Sections 3 to 6. 12
Neither method specifies a procedure for determining
expenses chargeable to the decedents estate. While Section
8 of Rule 69 provides that there shall be an accounting of the
real property's income (rentals and profits) in the course of an
action for partition, 13 there is no provision for the accounting
of expenses for which property belonging to the decedent's
estate may be answerable, such as funeral expenses,
inheritance taxes and similar expenses enumerated under
Section 1, Rule 90 of the Rules of Court.
In a situation where there remains an issue as to the expenses
chargeable to the estate, partition is inappropriate. While
petitioner points out that the estate is allegedly without any
debt and she and respondents are Leandro Figuracion's only
legal heirs, she does not dispute the finding of the CA that
"certain expenses" including those related to her father's final
illness and burial have not been properly settled. 14 Thus, the
heirs (petitioner and respondents) have to submit their
father's estate to settlement because the determination of
these expenses cannot be done in an action for partition.
In estate settlement proceedings, there is a proper procedure
for the accounting of all expenses for which the estate must
answer. If it is any consolation at all to petitioner, the heirs or

distributees of the properties may take possession thereof


even before the settlement of accounts, as long as they first
file a bond conditioned on the payment of the estate's
obligations
||| (Figuracion-Gerilla v. Vda. de Figuracion, G.R. No. 154322,
[August 22, 2006], 531 PHIL 81-88)

1. REMEDIAL LAW; EVIDENCE; FACTUAL FINDINGS,


RESPECTED; EXCEPTION IS WHEN FINDINGS OF TRIAL COURT
DIFFERED FROM THAT OF APPELLATE COURT. The general
principle is that the Supreme Court is not a trier of facts.
However, where the trial court and the CA arrived at different
factual findings, a review of the evidence on record may
become necessary. CcaASE
2. ID.; CIVIL PROCEDURE; ORDINARY CIVIL ACTION FOR
RECOVERY OF OWNERSHIP; ISSUES THAT SHOULD BE
BROUGHT BEFORE PROBATE COURT OR IN SPECIAL
PROCEEDINGS CANNOT BE ADJUDICATED THEREIN.
Questions as to the determination of the heirs of a decedent,
the proof of filiation, and the determination of the estate of a
decedent and claims thereto should be brought up before the
proper probate court or in special proceedings instituted for
the purpose. Such issues cannot be adjudicated in an ordinary
civil action for the recovery of ownership and possession.
4. ID.; PROPERTY; CO-OWNERSHIP; PARTITION; PURPOSE.
The purpose of partition is to put an end to co-ownership. It
seeks a severance of the individual interests of co-owners,
vesting in each of them a sole estate in a specific property
and a right to enjoy the allotted estate without supervision or
interference.
||| (Arbolario v. Court of Appeals, G.R. No. 129163, [April 22,
2003], 449 PHIL 357-369)

Caneda suggested: "[I]t may thus be stated that the rule, as it


now stands, is that omission which can be supplied by an
examination of the will itself, without the need of resorting to
extrinsic evidence, will not be fatal and, correspondingly,
would not obstruct the allowance to probate of the will being
assailed. However, those omissions which cannot be supplied
except by evidence aliunde would result in the invalidation of
the attestation clause and ultimately, of the will
itself." 31 Thus, a failure by the attestation clause to state that
the testator signed every page can be liberally construed,
since that fact can be checked by a visual examination; while
a failure by the attestation clause to state that the witnesses
signed in one another's presence should be considered a fatal
flaw since the attestation is the only textual guarantee of
compliance. 32
The failure of the attestation clause to state the number of
pages on which the will was written remains a fatal flaw,
despite Article 809. The purpose of the law in requiring the
clause to state the number of pages on which the will is
written is to safeguard against possible interpolation or
omission of one or some of its pages and to prevent any
increase or decrease in the pages. 33 The failure to state the
number of pages equates with the absence of an averment on
the part of the instrumental witnesses as to how many pages
consisted the will, the execution of which they had ostensibly
just witnessed and subscribed to. Following Caneda, there is
substantial compliance with this requirement if the will states
elsewhere in it how many pages it is comprised of, as was the
situation in Singson and Taboada. However, in this case, there
could have been no substantial compliance with the
requirements under Article 805 since there is no statement in

the attestation clause or anywhere in the will itself as to the


number of pages which comprise the will.
At the same time, Article 809 should not deviate from the
need to comply with the formal requirements as enumerated
under Article 805. Whatever the inclinations of the members
of the Code Commission in incorporating Article 805, the fact
remains that they saw fit to prescribe substantially the same
formal requisites as enumerated in Section 618 of the Code of
Civil Procedure, convinced that these remained effective
safeguards against the forgery or intercalation of notarial
wills. 34Compliance with these requirements, however
picayune in impression, affords the public a high degree of
comfort that the testator himself or herself had decided to
convey property post mortem in the manner established in
the will. 35 The transcendent legislative intent, even as
expressed in the cited comments of the Code Commission, is
for the fruition of the testator's incontestable desires, and not
for the indulgent admission of wills to probate.
The Court could thus end here and affirm the Court of
Appeals. However, an examination of the will itself reveals a
couple of even more critical defects that should necessarily
lead to its rejection.
For one, the attestation clause was not signed by the
instrumental witnesses. While the signatures of the
instrumental witnesses appear on the left-hand margin of the
will, they do not appear at the bottom of the attestation
clause which after all consists of their averments before the
notary public.
||| (Azuela v. Court of Appeals, G.R. No. 122880, [April 12,
2006], 521 PHIL 263-285)

1. REMEDIAL LAW; CIVIL PROCEDURE; ANNULMENT OF


JUDGMENTS; REMEDIES AVAILABLE TO AN AGGRIEVED PARTY.
Section 37 of the Rules of Court allows an aggrieved party
to file a motion for new trial on the ground of fraud, accident,
mistake, or excusable negligence. The same Rule permits the
filing of a motion for reconsideration on the grounds of
excessive award of damages, insufficiency of evidence to
justify the decision or final order, or that the decision or final
order is contrary to law. Both motions should be filed within
the period for taking an appeal, or fifteen (15) days from
notice of the judgment or final order. Meanwhile, a petition for
relief from judgment under Section 3 of Rule 38 is resorted to
when a judgment or final order is entered, or any other
proceeding is thereafter taken, against a party in any court
through fraud, accident, mistake, or excusable negligence.
Said party may file a petition in the same court and in the
same case to set aside the judgment, order or proceeding. It
must be filed within sixty (60) days after the petitioner learns
of the judgment and within six (6) months after entry thereof.
A motion for new trial or reconsideration and a petition for
relief from judgment are remedies available only to parties in
the proceedings where the assailed judgment is rendered. In
fact, it has been held that a person who was never a party to
the case, or even summoned to appear therein, cannot avail
of a petition for relief from judgment.
2. ID.; ID.; ID.; EVEN THOUGH PETITIONERS WERE NOT
MENTIONED IN THEIR PETITION FOR PROBATE, THEY BECAME
PARTIES THERETO AS A CONSEQUENCE OF THE PUBLICATION
OF THE NOTICE OF HEARING. Under the Rules of Court, any
executor, devisee, or legatee named in a will, or any other
person interested in the estate may, at any time after the
death of the testator, petition the court having jurisdiction to
have the will allowed. Notice of the time and place for proving
the will must be published for three (3) consecutive weeks, in
a newspaper of general circulation in the province, as well as

furnished to the designated or other known heirs, legatees,


and devisees of the testator. Thus, it has been held that a
proceeding for the probate of a will is one in rem, such that
with the corresponding publication of the petition the court's
jurisdiction extends to all persons interested in said will or in
the settlement of the estate of the decedent. Publication is
notice to the whole world that the proceeding has for its
object to bar indefinitely all who might be minded to make an
objection of any sort against the right sought to be
established. It is the publication of such notice that brings in
the whole world as a party in the case and vests the court
with jurisdiction to hear and decide it. Thus, even though
petitioners were not mentioned in the petition for probate,
they eventually became parties thereto as a consequence of
the publication of the notice of hearing.
3. ID.; ID.; ID.; PETITIONERS COULD NO LONGER RESORT TO A
PETITION FOR ANNULMENT OF JUDGMENT DUE TO THEIR
FAILURE TO MAKE USE WITHOUT SUFFICIENT JUSTIFICATION
OF THE REMEDIES AVAILABLE UNDER THE RULES AND TO
RULE OTHERWISE WOULD ALLOW PETITIONERS TO BENEFIT
FROM THEIR OWN INACTION OR NEGLIGENCE. As parties to
the probate proceedings, petitioners could have validly
availed of the remedies of motion for new trial or
reconsideration and petition for relief from judgment. In fact,
petitioners filed a motion to reopen, which is essentially a
motion for new trial, with petitioners praying for the reopening
of the case and the setting of further proceedings. However,
the motion was denied for having been filed out of time, long
after the Decision became final and executory. Conceding that
petitioners became aware of the Decision after it had become
final, they could have still filed a petition for relief from
judgment after the denial of their motion to reopen.
Petitioners claim that they learned of the Decision only on 4
October 2001, or almost four (4) months from the time the
Decision had attained finality. But they failed to avail of the
remedy. For failure to make use without sufficient justification
of the said remedies available to them, petitioners could no
longer resort to a petition for annulment of judgment;
otherwise, they would benefit from their own inaction or
negligence.
4. ID.; ID.; ID.; AN ACTION FOR ANNULMENT OF JUDGMENT IS
A REMEDY IN LAW INDEPENDENT OF THE CASE WHERE THE
JUDGMENT SOUGHT TO BE ANNULLED WAS RENDERED AND A
PERSON NEED NOT BE A PARTY TO THE CASE AND IT IS ONLY
ESSENTIAL THAT THE ASSAILED JUDGMENT WAS OBTAINED BY
FRAUD AND COLLUSION AND THE PETITIONER WOULD BE
ADVERSELY AFFECTED THEREBY. An action for annulment of
judgment is a remedy in law independent of the case where
the judgment sought to be annulled was rendered. The
purpose of such action is to have the final and executory
judgment set aside so that there will be a renewal of litigation.
It is resorted to in cases where the ordinary remedies of new
trial, appeal, petition for relief from judgment, or other
appropriate remedies are no longer available through no fault
of the petitioner, and is based on only two grounds: extrinsic
fraud, and lack of jurisdiction or denial of due process. A
person need not be a party to the judgment sought to be
annulled, and it is only essential that he can prove his
allegation that the judgment was obtained by the use of fraud
and collusion and he would be adversely affected thereby.
5. ID.; ID.; ID.; THE OVERRIDING CONSIDERATION WHEN
EXTRINSIC FRAUD IS ALLEGED IS THAT THE FRAUDULENT
SCHEME OF THE PREVAILING LITIGANT PREVENTED A PARTY
FROM HAVING HIS DAY IN COURT. An action to annul a final
judgment on the ground of fraud lies only if the fraud is
extrinsic or collateral in character. Fraud is regarded as
extrinsic where it prevents a party from having a trial or from
presenting his entire case to the court, or where it operates
upon matters pertaining not to the judgment itself but to the

manner in which it is procured. The overriding consideration


when extrinsic fraud is alleged is that the fraudulent scheme
of the prevailing litigant prevented a party from having his
day in court.

of sections 637, 638, and 639 of the Code of Civil Procedure


by requesting a hearing on the question of the allowance of a
will said to have been proved and allowed in another
jurisdiction.

6. ID.; ID.; ID.; THE NON-INCLUSION OF PETITIONER'S NAME IN


THE PETITION AND THE ALLEGED FAILURE TO PERSONALLY
NOTIFY THEM OF THE PROCEEDINGS DO NOT CONSTITUTE
EXTRINSIC FRAUD; PETITIONERS WERE NOT DENIED THEIR
DAY IN COURT, AS THEY WERE NOT PREVENTED FROM
PARTICIPATING IN THE PROCEEDINGS AND PRESENTING THEIR
CLAIM BEFORE THE PROBATE COURT. According to the
Rules, notice is required to be personally given to known
heirs, legatees, and devisees of the testator. A perusal of the
will shows that respondent was instituted as the sole heir of
the decedent. Petitioners, as nephews and nieces of the
decedent, are neither compulsory nor testate heirs who are
entitled to be notified of the probate proceedings under the
Rules. Respondent had no legal obligation to mention
petitioners in the petition for probate, or to personally notify
them of the same. Besides, assuming arguendo that
petitioners are entitled to be so notified, the purported
infirmity is cured by the publication of the notice. After all,
personal notice upon the heirs is a matter of procedural
convenience and not a jurisdictional requisite. The noninclusion of petitioners' names in the petition and the alleged
failure to personally notify them of the proceedings do not
constitute extrinsic fraud. Petitioners were not denied their
day in court, as they were not prevented from participating in
the proceedings and presenting their case before the probate
court.

||| (Fluemer v. Hix, G.R. No. 32636, [March 17, 1930], 54 PHIL
610-613)

||| (Alaban v. Court of Appeals, G.R. No. 156021, [September


23, 2005], 507 PHIL 682-696)

1. WILLS; EXECUTORS AND ADMINISTRATORS; CODE OF CIVIL


PROCEDURE, SECTION 781, AS AMENDED, APPLIED; RIGHT OF
SPECIAL ADMINISTRATOR TO APPEAL FROM DISALLOWANCE
OF A WILL. The special administrator of an estate is a
"person interested in the allowance or disallowance of a will
by a Court of First Instance," within the meaning of section
781, as amended, of the Code of Civil Procedure, and so may
be permitted to appeal to the Supreme Court from the
disallowance of a will.
2. ID.; ID.; CONFLICT OF LAWS; CODE OF CIVIL PROCEDURE,
SECTIONS 300 AND 301, APPLIED. The laws of a foreign
jurisdiction do not prove themselves in our courts. The courts
of the Philippine Islands are not authorized to take judicial
notice of the laws of the various States of the American Union.
Such laws must be proved as facts. The requirements of
sections 300 and 301 of the Code of Civil Procedure must be
met.
3. ID.; ID.; ID.; CODE OF CIVIL PROCEDURE, SECTION 633,
APPLIED. The due execution of a will alleged to have been
executed in another jurisdiction must be established. Where
the witnesses to the will reside without the Philippine Islands,
it is the duty of the petitioner to prove execution by some
other means.
4. ID.; ID.; ID.; DOMICILE. Where it is desired to establish
the execution of a will in another jurisdiction, it is necessary to
prove that the testator had his domicile in that jurisdiction and
not in the Philippine Islands.
5. ID.; ID.; ID.; CODE OF CIVIL PROCEDURE, SECTIONS 637,
638, AND 639, APPLIED. Where it is desired to prove the
probate of a will in another jurisdiction and the appointment in
that jurisdiction of an administrator for the estate of the
deceased, the moving party must comply with the provisions

In any case, the Court has also ruled that if land is invalidly
transferred to an alien who subsequently becomes a citizen or
transfers it to a citizen, the flaw in the original transaction is
considered cured and the title of the transferee is rendered
valid. 49 In this case, since the Makati property had already
passed on to respondent who is a Filipino, then whatever flaw,
if any, that attended the acquisition by the Guerseys of the
Makati property is now inconsequential, as the objective of
the constitutional provision to keep our lands in Filipino hands
has been achieved.||| (Ancheta v. Guersey-Dalaygon, G.R. No.
139868, [June 8, 2006], 523 PHIL 516-539)

n the case at bar, the surviving spouse of the deceased


Gregorio Ventura is Juana Cardona while the next of kin are:
Mercedes and Gregoria Ventura and Maria and Miguel
Ventura. The "next of kin" has been defined as those persons
who are entitled under the statute of distribution to the
decedent's property (Cooper vs. Cooper, 43 Ind. A 620, 88 NE
341). It is generally said that "the nearest of kin, whose
interest in the estate is more preponderant, is preferred in the
choice of administrator. 'Among members of a class the
strongest ground for preference is the amount or
preponderance of interest. As between next of kin, the
nearest of kin is to be preferred.'" (Cabanas, et al. vs. Enage,
et al., 40 Off. Gaz. 12 Suppl. 227; citing 12 Am. Jur. Sec, 77, p.
416, cited in Francisco Vicente J., The Revised Rules of Court
in the Philippines, Vol. V-B, 1970 Ed., p. 23).||| (Testate Estate
of Ventura v. Ventura, G.R. No. L-26306, [April 27, 1988], 243
PHIL 952-963)

1. SUPPORT; ALIMONY; PENDENTE LITE; ABSENCE OF PROOF


AS REGARDS CHARACTER OF PROPERTY; CASE AT BAR. The
lower court denied support to appellant widow because of
absence of proof as regards the status, nature or character of
the property under the custody of the special administrator.
On account of such lack of proof thereon, this Court is bound
by law to assume that the estate of the deceased consists of
property belonging to the conjugal partnership, one-half of
which belongs presumptively to appellant, aside from such
part of the share of the deceased in said partnership as may
belong to her as one of his compulsory heirs, if his alleged will
were not allowed to probate, or even if probated, if the
provision therein disinheriting her were nullified. Inasmuch as
the aforementioned estate is worth P205,397.64, the
continuation of the monthly alimony, pendente lite, of
P1,000.00 is fairly justified.
2. SETTLEMENT OF ESTATE OF DECEASED PERSON;
PREFERENCE OF SURVIVING SPOUSE TO ADMINISTER ESTATE
OF DECEASED. The preference, accorded by Section 6 of
Rule 78 of the Revised Rules of Court to the surviving spouse,
for appointment as administrator or administratrix of the
estate of the deceased, exists "if no executor is named in the
will or the executor or executors are incompetent, refuse the
trust, or fail to give bond, or a person dies intestate." None of
these conditions obtains in the case at bar.
3. ID.; ID.; PREFERENCE REFERS TO REGULAR
ADMINISTRATOR. The right of preference under the

aforementioned section refers to the appointment of a regular


administrator or administratrix, not to that of a special
administrator.
4. ID.; ID.; ORDER APPOINTING SPECIAL ADMINISTRATOR NOT
APPEALABLE. The order appointing a special administrator
lies within the discretion of the probate court, and is not
appealable.
||| (Gurrea v. Vda. de Gurrea, G.R. No. L-21917, [November 29,
1966], 124 PHIL 1527-1532)

3. ID.; ID.; ID.; ID.; CO-EXTENSIVE WITH THAT OF THE


ADMINISTRATOR OF ESTATE. Section 1 of Rule 81 of the
Rules of Court requires the administrator/executor to put up a
bond for the purpose of indemnifying the creditors, heirs,
legatees and the estate. It is conditioned upon the faithful
performance of the administrator's trust (Mendoza vs.
Pacheco, 64 Phil. 134). Having in mind the purpose and intent
of the law, the surety is then liable under the administrator's
bond, for as long as the administrator has duties to do as such
administrator/executor. Since the liability of the sureties is coextensive with that of the administrator and embraces the
performance of every duty he is called upon to perform in the
course of administration (Deobold vs. Oppermann, 111 NY
531, 19 NE 94), it follows that the administrator is still duty
bound to respect the indemnity agreements entered into by
him in consideration of the suretyship.
4. ID.; ID.; ID.; ID.; ID.; APPROVAL OF PROJECT OF PARTITION
AND STATEMENT OF ACCOUNTS DOES NOT TERMINATE
LIABILITY. The contention of the defendants-appellants that
the administrator's bond ceased to be of legal force and effect
with the approval of the project of partition and statement of
accounts on June 6, 1957 is without merit. The defendantappellant Pastor T. Quebrar did not cease as administrator
after June 6, 1957, for administration is for the purpose of
liquidation of the estate and distribution of the residue among
the heirs and legatees. And liquidation means the
determination of all the assets of the estate and payment of
all the debts and expenses (Flores vs. Flores, 48 Phil. 982). It
appears that there were still debts and expenses to be paid
after June 6, 1957.
||| (Luzon Surety Co., Inc. v. Quebrar, G.R. No. L-40517,
[January 31, 1984], 212 PHIL 275-286)

1. REMEDIAL LAW; SPECIAL PROCEEDINGS; SETTLEMENT OF


ESTATE; ALLOWANCE FOR SUPPORT; SHOULD NOT BE LIMITED
TO "MINOR OR INCAPACITATED" CHILDREN. It is settled that
allowances for support under Section 3 of Rule 83 should not
be limited to the "minor or incapacitated" children of the
deceased. Article 188 of the Civil Code of the Philippines, the
substantive law in force at the time of the testator's death,
provides that during the liquidation of the conjugal
partnership, deceased's legitimate spouse and children,
regardless of their age, civil status or gainful employment, are
entitled to provisional support from the funds of the estate.
The law is rooted on the fact that the right and duty to
support, especially the right to education, subsist even
beyond the age of majority.
2. ID.; ID.; ID.; ID.; DOES NOT EXTEND TO DECEASED'S
GRANDCHILDREN. The law clearly limits the allowance to
"widow and children" and does not extend it to the deceased's
grandchildren, regardless of their minority or incapacity.
3. ID.; ID.; ID.; ID.; WHEN DISTRIBUTION OF ESTATE
PROPERTIES CAN BE MADE. In settlement of estate
proceedings, the distribution of the estate properties can only

be made: (1) after all the debts, funeral charges, expenses of


administration, allowance to the widow, and estate tax have
been paid; or (2) before payment of said obligations only if the
distributees or any of them gives a bond in a sum fixed by the
court conditioned upon the payment of said obligations within
such time as the court directs, or when provision is made to
meet those obligations.
4. ID., ID., ID.; PAYMENT OF ESTATE TAX; AN OBLIGATION THAT
MUST BE PAID BEFORE THE DISTRIBUTION OF ESTATE. The
estate tax is one of those obligations that must be paid before
distribution of the estate. If not yet paid, the rule requires that
the distributees post a bond or make such provisions as to
meet the said tax obligation in proportion to their respective
shares in the inheritance.
5. ID.; ID.; ID.; PURPOSE OF PROBATE. The probate of a will
is conclusive as to its due execution and extrinsic validity and
settles only the question of whether the testator, being of
sound mind, freely executed it in accordance with the
formalities prescribed by law. Questions as to the intrinsic
validity and efficacy of the provisions of the will, the legality of
any devise or legacy may be raised even after the will has
been authenticated.
6. ID.; ID.; ID.; RIGHT OF AN EXECUTOR OR ADMINISTRATOR
OVER PROPERTIES OF THE DECEASED. The right of an
executor or administrator to the possession and management
of the real and personal properties of the deceased is not
absolute and can only be exercised "so long as it is necessary
for the payment of the debts and expenses of administration."
||| (Estate of Ruiz v. Court of Appeals, G.R. No. 118671,
[January 29, 1996], 322 PHIL 590-604)

1. REMEDIAL LAW; SPECIAL PROCEEDINGS; ACCOUNTABILITY


OF ADMINISTRATOR; WHEN TO RENDER ACCOUNTS; RULE
AND EXCEPTION. The rendering of an accounting by an
administrator of his administration within one year from his
appointment is mandatory, as shown by the use of the word
"shall" in said rule. The only exception is when the Court
otherwise directs because of extensions of time for presenting
claims against the estate or for paying the debts or disposing
the assets of the estate, which do not exist in the case at bar.
2. ID.; ID.; REMOVAL OF ADMINISTRATOR; JUSTIFIED, FOR
NEGLIGENCE TO RENDER AN ACCOUNTING OF HIS
ADMINISTRATION AS REQUIRED BY LAW. subsequent
compliance in rendering an accounting report did not purge
her of her negligence in not rendering an accounting for more
than six years, which justifies petitioner's removal as
administratrix and the appointment of private respondent in
her place as mandated by Section 2 of Rule 82 of the Rules of
Court. As correctly stated by the appellate court: "The settled
rule is that the removal of an administrator under Section 2 of
Rule 82 lies within the discretion of the Court appointing him.
As aptly expressed by the Supreme Court in the case of
Degala vs. Ceniza and Umipig, 78 Phil. 791, 'the sufficiency of
any ground for removal should thus be determined by said
court, whose sensibilities are, in the first place, affected by
any act or omission on the part of the administrator not
comfortable to or in disregard of the rules or the orders of the
court.' Consequently, appellate tribunals are disinclined to
interfere with the action taken by a probate court in the
matter of the removal of an executor or administrator unless
positive error or gross abuse of discretion is shown. (Borromeo
vs. Borromeo, 97 Phil. 549; Matute vs. Court of Appeals, 26
SCRA 768.) In the case at bar, the removal of petitioner as
administratrix was on the ground of her failure for 6 years and
3 months from the time she was appointed as administratrix

to render an accounting of her administration as required by


Section 8 of Rule 85 of the Rules of Court."
||| (Kalaw v. Intermediate Appellate Court, G.R. No. 74618,
[September 2, 1992], 288 PHIL 155-162)

Laches is negligence or omission to assert a right within a


reasonable time, warranting the presumption that the party
entitled to assert it has either abandoned or declined the
right. 16 The essential elements of laches are: (1) conduct on
the part of the defendant, or of one under whom he claims,
giving rise to the situation of which complaint is made and for
which the complaint seeks a remedy; (2) delay in asserting
the complainant's rights, the complainant having had
knowledge or notice of the defendant's conduct and having
been afforded an opportunity to institute a suit; (3) lack of
knowledge or notice on the part of the defendant that the
complainant would assert the right on which he bases his suit;
and (4) injury or prejudice to the defendant in the event relief
is accorded to the complainant, or the suit is not held
barred. 17
In the present case, the appellate court erred in appreciating
laches against petitioners. The element of delay in
questioning the subject orders of the intestate court is sorely
lacking. Petitioners were totally unaware of the plan of Agustin
to mortgage and sell the estate properties. There is no
indication that mortgagor PNB and vendee Arguna had
notified petitioners of the contracts they had executed with
Agustin. Although petitioners finally obtained knowledge of
the subject petitions filed by their father, and eventually
challenged the July 18, 1973, October 19, 1974, February 25,
1980 and January 7, 1981 orders of the intestate court, it is
not clear from the challenged decision of the appellate court
when they (petitioners) actually learned of the existence of
said orders of the intestate court. Absent any indication of the
point in time when petitioners acquired knowledge of those
orders, their alleged delay in impugning the validity thereof
certainly cannot be established. And the Court of Appeals
cannot simply impute laches against them.
||| (Pahamotang v. PNB, G.R. No. 156403, [March 31, 2005],
494 PHIL 645-663)

Pending the filing of administration proceedings, the heirs


without doubt have legal personality to bring suit in behalf of
the estate of the decedent in accordance with the provision
of Article 777 of the New Civil Code "that (t)he rights to
succession are transmitted from the moment of the death of
the decedent." The provision in turn is the foundation of the
principle that the property, rights and obligations to the
extent and value of the inheritance of a person are
transmitted through his death to another or others by his will
or by operation of law. 25
Even if administration proceedings have already been
commenced, the heirs may still bring the suit if an
administrator has not yet been appointed. This is the proper
modality despite the total lack of advertence to the heirs in
the rules on party representation, namely Section 3, Rule
3 26 and Section 2, Rule 87 27 of the Rules of Court. In fact, in
the case of Gochan v. Young, 28 this Court recognized the
legal standing of the heirs to represent the rights and
properties of the decedent under administration pending the
appointment of an administrator. Thus:
The above-quoted rules, 29 while permitting an executor or
administrator to represent or to bring suits on behalf of the
deceased, do not prohibit the heirs from representing the

deceased. These rules are easily applicable to cases in which


an administrator has already been appointed. But no rule
categorically addresses the situation in which special
proceedings for the settlement of an estate have already been
instituted, yet no administrator has been appointed. In such
instances, the heirs cannot be expected to wait for the
appointment of an administrator; then wait further to see if
the administrator appointed would care enough to file a suit to
protect the rights and the interests of the deceased; and in
the meantime do nothing while the rights and the properties
of the decedent are violated or dissipated.
Even if there is an appointed administrator, jurisprudence
recognizes two exceptions, viz (1) if the executor or
administrator is unwilling or refuses to bring suit; 30 and (2)
when the administrator is alleged to have participated in the
act complained of 31 and he is made a party
defendant. 32 Evidently, the necessity for the heirs to seek
judicial relief to recover property of the estate is as compelling
when there is no appointed administrator, if not more, as
where there is an appointed administrator but he is either
disinclined to bring suit or is one of the guilty parties himself.
All told, therefore, the rule that the heirs have no legal
standing to sue for the recovery of property of the estate
during the pendency of administration proceedings has three
exceptions, the third being when there is no appointed
administrator such as in this case.
||| (Rioferio v. Court of Appeals, G.R. No. 129008, [January 13,
2004], 464 PHIL 67-75)

1. REMEDIAL LAW; EXTRAJUDICIAL FORECLOSURE OF


MORTGAGE; PRUDENTIAL BANK v. MARTINEZ; NOT
APPLICABLE IN CASE AT BAR. Prudential Bank vs. Martinez,
189 SCRA 612, 615 (1990), is particularly cited by petitioner
as precedent for holding that in extrajudicial foreclosure of
mortgage, when the proceeds of the sale are insufficient to
pay the debt, the mortgagee has the right to recover the
deficiency from the mortgagor. However, it must be pointed
out that petitioner's cited cases involves ordinary debts
secured by a mortgage. The case at bar, we must stress,
involves a foreclosure of mortgage arising out of a settlement
of estate, wherein the administrator mortgaged a property
belonging to the estate of the decedent, pursuant to an
authority given by the probate court. As the Court of Appeals
correctly stated, the Rules of Court on Special Proceedings
comes into play decisively.
2. ID.; SPECIAL PROCEEDINGS; SETTLEMENT OF ESTATE OF
DECEASED PERSON; CLAIM AGAINST ESTATE; REMEDIES THAT
CAN ALTERNATIVELY BE PURSUED BY THE MORTGAGEE FOR
THE SATISFACTION OF HIS CREDIT IN CASE THE MORTGAGOR
DIES. Case law now holds that Section 7, Rule 86 of the
Rules of Court grants to the mortgagee three distinct,
independent and mutually exclusive remedies that can be
alternatively pursued by the mortgage creditor for the
satisfaction of his credit in case the mortgagor dies, among
them: (1) to waive the mortgage and claim the entire debt
from the estate of the mortgagor as an ordinary claim; (2) to
foreclose the mortgage judicially and prove any deficiency as
an ordinary claim; and (3) to rely on the mortgage exclusively,
foreclosing the same at any time before it is barred by
prescription without right to file a claim for any
deficiency. aSHAIC
3. ID.; ID.; ID.; ID.; ID.; IF THE CREDITOR ADOPTED THE
EXTRAJUDICIAL FORECLOSURE, HE WAIVES ANY FURTHER
DEFICIENCY CLAIM. In Perez v. Philippine National Bank,
reversing Pasno v. Ravina, we held: The ruling is Pasno vs.
Ravina not having been reiterated in any other case, we have

carefully reexamined the same, and after mature deliberation


have reached the conclusion that the dissenting opinion is
more in conformity with reason and law. Of the three
alternative courses that Section 7, Rule 87 (now Rule 86),
offers the mortgage creditor, to wit, (1) to waive the mortgage
and claim the entire debt from the estate of the mortgagor as
an ordinary claim; (2) foreclose the mortgage judicially and
prove any deficiency as an ordinary claim; (3) to rely on the
mortgage exclusively, foreclosing the same at any time before
it is barred by prescription, without right to file a claim for any
deficiency, the majority opinion in Pasno vs. Ravina, in
requiring a judicial foreclosure, virtually wipes out the third
alternative conceded by the Rule to the mortgage creditor,
and which would precisely included extra-judicial
foreclosures by contrast with the second alternative. The plain
result of adopting the last mode of foreclosure is that the
creditor waives his right to recover any deficiency from the
estate. Following the Perez ruling that the third mode includes
extrajudicial foreclosure sales, the result of extrajudicial
foreclosure is that the creditor waives any further deficiency
claim. The dissent inPasno, as adopted in Perez, supports this
conclusion, thus: "When account is further taken of the fact
that a creditor who elects to foreclose by extrajudicial sale
waives all right to recover against the estate of the deceased
debtor for any deficiency remaining unpaid after the sale it
will be readily seen that the decision in this case (referring to
the majority opinion) will impose a burden upon the estate of
deceased persons who have mortgaged real property for the
security of debts, without any compensatory advantage."
4. ID.; ID.; ID.; ID.; ID.; ID.; APPLIED IN CASE AT BAR.
Clearly, in our view, petitioner herein has chosen the
mortgage creditor's option of extrajudicially foreclosing the
mortgaged property of the Chuas. This choice now bars any
subsequent deficiency claim against the estate of the
deceased, Antonio M. Chua. Petitioner may no longer avail of
the complaint for the recovery of the balance of indebtedness
against said estate, after petitioner foreclosed the property
securing the mortgage in its favor. It follows that this case no
further liability remains on the part of respondents and the
late Antonio M. Chua's estate.
||| (PNB v. Court of Appeals, G.R. No. 121597, [June 29, 2001],
412 PHIL 807-815)

1. OBLIGATIONS AND CONTRACTS; PAYMENTS MADE WITH


JAPANESE WAR NOTES DURING THE OCCUPATION OF PREWAR
OBLIGATIONS, VALIDITY OF. In view of our decision in the
case of Haw Pia vs. China Banking Corporation, L-554 (45 Off.
Gaz., No. 9 [Supp.], September, 1949, p. 229), 1 wherein it
was ruled that payments made with Japanese war notes
during the occupation of obligations contracted before the
war, to the creditors of his legal representatives, and accepted
by them, are valid and release the said obligations, there no
longer is any doubt as to the validity of similar payments.
2. TORRENS SYSTEM; DEPARTMENT DIRECTIVES TO REGISTER
OF DEEDS, CIRCULAR No. 14, 1945, ILLEGAL. Circular No.
14, series of 1945 of the Department of Justice, directing
Registers of Deeds to insert in all certificates of title involving
cancellations of encumbrances effected during the Japanese
occupation the following words "subject to such further
dispositions as the government may adopt regarding
transactions consummated during the Japanese occupation,"
is unwarranted and illegal. Doctrine in Lim vs. Register of
Deeds of Rizal (L-1739, 46 Off. Gaz., 3665), 2 reiterated.
||| (La Orden de Padres Benedictinos de Filipinas v. Phil. Trust
Co., G.R. No. L-2020, [December 29, 1949], 85 PHIL 217-228)

REMEDIAL LAW; SPECIAL PROCEEDINGS; SETTLEMENT OF


ESTATE OF DECEASED PERSON; CONTROVERSIES SHALL BE
HEARD AND SETTLED AS IN ORDINARY CASES. The
provision relied upon by respondent court is clear: If there is a
controversy before the court as to who are the lawful heirs of
the deceased person or as to the distributive shares to which
each person is entitled under the law, the controversy shall be
heard and decided as in ordinary cases. The Court agrees with
petitioner that no dispute exists either as to the right of the
six (6) Padlan children to inherit from the decedent because
there are proofs that they have been duly acknowledged by
him and petitioner herself even recognizes them as heirs of
Arturo Padlan; nor as to their respective hereditary shares. But
controversy remains as to who is the legitimate surviving
spouse of Arturo||| (Quita v. Court of Appeals, G.R. No.
124862, [December 22, 1998], 360 PHIL 601-610)

1. REMEDIAL LAW; SPECIAL PROCEEDINGS; SETTLEMENT OF


ESTATE OF DECEASED PERSONS; JURISDICTION OF TRIAL
COURT DOES NOT EXTEND TO THE DETERMINATION OF
QUESTIONS OF OWNERSHIP THAT ARISE DURING THE
PROCEEDINGS. The general rule is that the jurisdiction of
the trial court either as an intestate or a probate court relates
only to matters having to do with the settlement of the estate
and probate of will of deceased persons but does not extend
to the determination of questions of ownership that arise
during the proceedings. The patent rationale for this rule is
that such court exercises special and limited jurisdiction.
2. ID.; ID.; ID.; AN INTESTATE OR PROBATE COURT MAY HEAR
AND PASS UPON QUESTIONS OF OWNERSHIP ONLY WHEN ITS
PURPOSE IS TO DETERMINE WHETHER OR NOT A PROPERTY
SHOULD BE INCLUDED IN THE INVENTORY. A wellrecognized deviation to the rule is the principle that an
intestate or a probate court may hear and pass upon
questions of ownership when its purpose is to determine
whether or not a property should be included in the inventory.
In such situations the adjudication is merely incidental and
provisional. Thus, in Pastor, Jr. vs. Court of Appeals, we held: ".
. . As a rule, the question of ownership is an extraneous
matter which the probate court cannot resolve with finality.
Thus, for the purpose of determining whether a certain
property should or should not be included in the inventory of
estate properties, the probate court may pass upon the title
thereto, but such determination is provisional, not conclusive,
and is subject to the final decision in a separate action to
resolve title." The Court of Appeals relied heavily on the above
principle in sustaining the jurisdiction of the intestate court to
conduct a hearing on respondent's claim. Such reliance is
misplaced. Under the said principle, the key consideration is
that the purpose of the intestate or probate court in hearing
and passing upon questions of ownership is merely to
determine whether or not a property should be included in the
inventory. The facts of this case show that such was not the
purpose of the intestate court.
3. ID.; ID.; ID.; RESPONDENT'S PURPOSE WAS NOT TO OBTAIN
FROM INTESTATE COURT A RULING OF WHAT PROPERTIES
SHOULD OR SHOULD NOT BE INCLUDED IN THE INVENTORY
BUT TO SECURE A FINAL DETERMINATION OF HER CLAIM OF
OWNERSHIP OVER PROPERTIES COMPRISING THE BULK OF
THE DECEDENT'S ESTATE. Respondent's purpose here was
not to obtain from the intestate court a ruling of what
properties should or should not be included in the inventory.
She wanted something else, i.e., to secure from the intestate
court a final determination of her claim of ownership over
properties comprising the bulk of Miguelita's estate. The
intestate court went along with respondent on this point as
evident in its Resolution dated May 7, 1996. It is apparent
from the Resolution that the purpose of the hearing set by the

intestate court was actually to "determine the propriety of


oppositor's (respondent's) claim." According to the intestate
court, "if it is true that the oppositor (respondent) owns the
bulk of (Miguelita's) properties," then it means that she has a
"material and direct interest in the estate" and, hence, "she
should be given her day in court." The intended "day in court"
or hearing is geared towards resolving the propriety of
respondent's contention that she is the true owner of the bulk
of Miguelita's estate. Surely, we cannot be deluded by
respondent's ingenious attempt to secure a proceeding for the
purpose of resolving her blanket claim against Miguelita's
estate. Although, she made it appear that her only intent was
to determine the accuracy of petitioner's inventory, however,
a close review of the facts and the pleadings reveals her real
intention.
4. ID.; ID.; ID.; TRIAL COURT OVERSTEPPED ITS JURISDICTION
AS AN INTESTATE COURT. The RTC, acting as an intestate
court, had overstepped its jurisdiction. Its proper course
should have been to maintain a hands-off stance on the
matter. It is well-settled in this jurisdiction, sanctioned and
reiterated in a long line of decisions, that when a question
arises as to ownership of property alleged to be a part of the
estate of the deceased person, but claimed by some other
person to be his property, not by virtue of any right of
inheritance from the deceased but by title adverse to that of
the deceased and his estate, such question cannot be
determined in the course of an intestate or probate
proceedings. The intestate or probate court has no jurisdiction
to adjudicate such contentions, which must be submitted to
the court in the exercise of its general jurisdiction as a
regional trial court. Jurisprudence teaches us that: "[A]
probate court or one in charge of proceedings whether testate
or intestate cannot adjudicate or determine title to properties
claimed to be a part of the estate and which are claimed to
belong to outside parties. All that the said court could do as
regards said properties is to determine whether they should or
should not be included in the inventory or list of properties to
be administered by the administrator. If there is no dispute,
well and good, but if there is, then the parties, the
administrator, and the opposing parties have to resort to an
ordinary action for a final determination of the conflicting
claims of title because the probate court cannot do so."
Hence, respondent's recourse is to file a separate action with
a court of general jurisdiction. The intestate court is not the
appropriate forum for the resolution of her adverse claim of
ownership over properties ostensibly belonging to Miguelita's
estate.
5. ID.; ID.; ID.; RESPONDENT'S CLAIM WILL NOT PROSPER
EVEN ASSUMING THAT THE INTESTATE COURT MERELY
INTENDED TO MAKE A PROVISIONAL OR PRIMA FACIE
DETERMINATION OF THE ISSUE OF OWNERSHIP BECAUSE P.D.
1529 OR THE PROPERTY REGISTRATION DECREE PROSCRIBES
COLLATERAL ATTACK AGAINST A TORRENS TITLE. Even
assuming that the intestate court merely intended to make a
provisional or prima facie determination of the issue of
ownership, still respondent's claim cannot prosper. It bears
stressing that the bulk of Miguelita's estate, as stated in
petitioner's inventory, comprises real estates covered by the
Torrens System which are registered either in the name of
Miguelita alone or with petitioner. As such, they are
considered the owners of the properties until their title is
nullified or modified in an appropriate ordinary action.
Corrolarily, P.D. 1529, otherwise known as, "The Property
Registration Decree," proscribes collateral attack against
Torrens Title.
6. ID.; ID.; ID.; RESPONDENT FAILED TO PRESENT CONVINCING
EVIDENCE TO BOLSTER HER BARE ASSERTION OF OWNERSHIP.
A perusal of the records reveals that respondent failed to
present convincing evidence to bolster her bare assertion of

ownership. Respondent could not even specify which of the


properties listed in petitioner's inventory belong to her.
Neither could she present any document to prove her claim of
ownership. The consistently changing basis of her claim did
nothing to improve her posture. Initially, she insisted that the
bulk of Miguelita's estate is composed of paraphernal
properties. Sensing that such assertion could not strengthen
her claim of ownership, she opted to change her submission
and declare that she and Miguelita were "business partners"
and that she gave to the latter most of her properties to be
used in a joint business venture. Respondent must have
realized early on that if the properties listed in petitioner's
inventory are paraphernal, then Miguelita had the absolute
title and ownership over them and upon her death, such
properties would be vested to her compulsory heirs, petitioner
herein and their two minor children.
||| (Pacioles, Jr. v. Chuatoco-Ching, G.R. No. 127920, [August 9,
2005], 503 PHIL 707-723)

1. REMEDIAL LAW; SPECIAL PROCEEDINGS; ESCHEAT AND


PERIOD TO RECOVER ESCHEATED PROPERTY; ELUCIDATED.
Escheat is a proceeding, unlike that of succession or
assignment, whereby the state, by virtue of its sovereignty,
steps in and claims the real or personal property of a person
who dies intestate leaving no heir. In the absence of a lawful
owner, a property is claimed by the state to forestall an open
"invitation to self-service by the first comers." Since escheat is
one of the incidents of sovereignty, the state may, and usually
does, prescribe the conditions and limits the time within which
a claim to such property may be made. The procedure by
which the escheated property may be recovered is generally
prescribed by statute, and a time limit is imposed within
which such action must be brought. In this jurisdiction, a
claimant to an escheated property must file his claim "within
five (5) years from the date of such judgment, such person
shall have possession of and title to the same, or if sold, the
municipality or city shall be accountable to him for the
proceeds, after deducting the estate; but a claim not made
shall be barred forever." The 5-year period is not a device
capriciously conjured by the state to defraud any claimant; on
the contrary, it is decidedly prescribed to encourage would-be
claimants to be punctilious in asserting their claims, otherwise
they may lose them forever in a final judgment.
2. ID.; ID.; ESCHEAT PROCEEDINGS; INTERESTED PARTY.
Does herein private respondent, not being an heir but
allegedly a donee, have the personality to be a claimant
within the purview of Sec. 4, Rule 91, of the Revised Rules of
Court? In this regard, we agree with the Solicitor General that
the case of Municipal Council of` San Pedro, Laguna v. Colegio
de San Jose, Inc., is applicable at least insofar as it concerns
the Court's discussion on who is an "interested party" in an
escheat proceeding . . . . Any person alleging to have a
direct right or interest in the property sought to be escheated
is likewise an interested party and may appear and oppose
the petition for escheat. . . .
||| (Republic v. Court of Appeals, G.R. No. 143483, [January 31,
2002], 426 PHIL 177-186)

Republic of the Philippines


Supreme Court
Manila
A.M. NO. 03-02-05-SC
[MAY 01, 2003]

RE: PROPOSED RULE ON GUARDIANSHIP OF MINORS


RESOLUTION
Acting on the letter of the Chairman of the Committee on
Revision of the Rules of Court submitting for this Courts
consideration and approval the Proposed Rule on
Guardianship of Minors, the Court Resolved to APPROVE the
same.
The Rule shall take effect on May 1, 2003 following its
publication in a newspaper of general circulation not later
than April 15, 2003. chan robles virtual law library
April 1, 2003.
Davide, Jr. C.J., Bellosillo, Puno, Vitug, Mendoza, Panganiban,
Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio,
Austria-Martinez, Corona, Carpio-Moralez,Callejo Sr.,
Azcuna, JJ., concur

(d) relationship of trust with the minor; chan robles virtual law
library
(e) availability to exercise the powers and duties of a guardian
for the full period of the guardianship;
(f) lack of conflict of interest with the minor; and cralaw
(g) ability to manage the property of the minor.cralaw
Sec. 6. Who may be appointed guardian of the person or
property, or both, of a minor. In default of parents or a courtappointed guardian, the court may appoint a guardian of the
person or property, or both, of a minor, observing as far as
practicable, the following order of
preference:chanroblesvirtuallawlibrary
(a) the surviving grandparent and In case several
grandparents survive, the court shall select any of them
taking Into account all relevant considerations;
(b) the oldest brother or sister of the minor over twenty-one
years of age, unless unfit or disqualified;

RULE ON GUARDIANSHIP OF MINORS


Section 1. Applicability of the Rule. This Rule shall apply to
petitions for guardianship over the person or property, or
both, of a minor. chan robles virtual law library

(c) the actual custodian of the minor over twenty-one years of


age, unless unfit or disqualified; and cralaw
(d) any other person, who in the sound discretion of the court,
would serve the best interests of the minor.cralaw

The father and the mother shall jointly exercise legal


guardianship over the person and property of their
unemancipated common child without the necessity of a court
appointment. In such case, this Rule shall be suppletory to the
provisions of the Family Code on guardianship.cralaw

Sec. 7. Contents of petition. A petition for the appointment


of a general guardian must allege the
following:chanroblesvirtuallawlibrary

Sec. 2. Who may petition for appointment of guardian. On


grounds authorized by law, any relative or other person on
behalf of a minor, or the minor himself if fourteen years of age
or over, may petition the Family Court for the appointment of
a general guardian over the person or property, or both, of
such minor. The petition may also be filed by the Secretary of
Social Welfare and Development and by the Secretary of
Health in the case of an insane minor who needs to be
hospitalized. chan robles virtual law library

(b) The name, age and residence of the prospective


ward; chan robles virtual law library

Sec. 3. Where to file petition. A petition for guardianship


over the person or property, or both, of a minor may be filed
in the Family Court of the province or city where the minor
actually resides. If he resides in a foreign country, the petition
shall be flied with the Family Court of the province or city
where his property or any part thereof is situated.cralaw

(f) The names, ages, and residences of relatives within the 4th
civil degree of the minor, and of persons having him in their
care and custody;

Sec. 4. Grounds of petition. - The grounds for the appointment


of a guardian over the person or property, or both, of a minor
are the following:chanroblesvirtuallawlibrary

(h) The name, age and residence of the person for whom
letters of guardianship are prayed.cralaw

(a) death, continued absence, or incapacity of his parents;


(b) suspension, deprivation or termination of parental
authority; chan robles virtual law library
(c) remarriage of his surviving parent, if the latter Is found
unsuitable to exercise parental authority; or
(d) when the best interests of the minor so require.cralaw
Sec. 5. Qualifications of guardians. In appointing a guardian,
the court shall consider the
guardians:chanroblesvirtuallawlibrary
(a) moral character; chan robles virtual law library
(b) physical, mental and psychological condition;
(c) financial status;

(a) The jurisdictional facts;

(c) The ground rendering the appointment necessary or


convenient; chan robles virtual law library
(d) The death of the parents of the minor or the termination,
deprivation or suspension of their parental authority;
(e) The remarriage of the minors surviving parent;

(g) The probable value, character and location of the property


of the minor; and cralaw

The petition shall be verified and accompanied by a


certification against forum shopping. However, no defect in
the petition or verification shall render void the issuance of
letters of guardianship.
Sec. 8. Time and notice of hearing. When a petition for the
appointment of a general guardian is filed, the court shall fix a
time and place for its hearing, and shall cause reasonable
notice to be given to the persons mentioned in the petition,
including the minor if he is fourteen years of age or over, and
may direct other general or special notice to be given.cralaw
Sec. 9. Case study report. The court shall order a social
worker to conduct a case study of the minor and all the
prospective guardians and submit his report and
recommendation to the court for its guidance before the
scheduled hearing. The social worker may intervene on behalf
of the minor if he finds that the petition for guardianship
should be denied. chan robles virtual law library

Sec. 10. Opposition to petition. Any interested person may


contest the petition by filing a written opposition based on
such grounds as the majority of the minor or the unsuitability
of the person for whom letters are prayed, and pray that the
petition be denied, or that letters of guardianship issue to
himself, or to any suitable person named in the
opposition.cralaw
Sec. 11. Hearing and order for letters to issue. At the
hearing of the petition, it must be shown that the requirement
of notice has been complied with. The prospective ward shall
be presented to the court. The court shall hear the evidence
of the parties in support of their respective allegations. If
warranted, the court shall appoint a suitable guardian of the
person or property, or both, of the minor. chan robles virtual
law library
At the discretion of the court, the hearing on guardianship
may be closed to the public and the records of the case shall
not be released without its approval.cralaw
Sec. 12. When and how a guardian of the property for nonresident minor is appointed; notice. When the minor resides
outside the Philippines but has property in the Philippines, any
relative or friend of such minor, or any one interested in his
property, in expectancy or otherwise, may petition the Family
Court for the appointment of a guardian over the
property.cralaw

(d)
To perform all orders of the court and such other duties
as may be required by law.cralaw
Sec. 15. Where to file the bond; action thereon. The bond
posted by a guardian shall be filed in the Family Court and, In
case of breach of any of its conditions, the guardian may be
prosecuted in the same proceeding for the benefit of the ward
or of any other person legally interested in the property.
Whenever necessary, the court may require the guardian to
post a new bond and may discharge from further liability the
sureties on the old bond after due notice to interested
persons, if no injury may result therefrom to those interested
in the property. chan robles virtual law library
Sec. 16. Bond of parents as guardians of property of minor. If
the market value of the property or the annual Income of the
child exceeds P50,000.00, the parent concerned shall furnish
a bond In such amount as the court may determine, but in no
case less than ten per centurn of the value of such property or
annual income, to guarantee the performance of the
obligations prescribed for general guardians.cralaw
A verified petition for approval of the bond shall be flied in the
Family Court of the place where the child resides or, if the
child resides in a foreign country, in the Family Court of the
place where the property or any part thereof is
situated.cralaw

Notice of hearing of the petition shall be given to the minor by


publication or any other means as the court may deem
proper. The court may dispense with the presence of the nonresident minor.cralaw

The petition shall be docketed as a summary special


proceeding In which all incidents and issues regarding the
performance of the obligations of a general guardian shall be
heard and resolved. chan robles virtual law library

If after hearing the court is satisfied that such non-resident is


a minor and a guardian is necessary or convenient, it may
appoint a guardian over his property.chan robles virtual law
library

Sec. 17. General duties of guardian. A guardian shall have


the care and custody of the person of his ward and the
management of his property, or only the management of his
property. The guardian of the property of a nonresident minor
shall have the management of all his property within the
Philippines.cralaw

Sec. 13. Service of final and executory judgment or order.


The final and executory judgment or order shall be served
upon the Local Civil Registrar of the municipality or city where
the minor resides and the Register of Deeds of the place
where his property or part thereof is situated shall annotate
the same in the corresponding title, and report to the court his
compliance within fifteen days from receipt of the order.cralaw
Sec. 14. Bond of guardian; amount; conditions. - Before he
enters upon the execution of his trust, or letters of
guardianship issue, an appointed guardian may be required to
post a bond in such sum as the court shall determine and
conditioned as follows:chanroblesvirtuallawlibrary
(a)
To make and return to the court, within three months
after the issuance of his letters of guardianship, a true and
complete Inventory of all the property, real and personal, of
his ward which shall come to his possession or knowledge or
to the possession or knowledge of any other person in his
behalf;
(b)
To faithfully execute the duties of his trust, to manage
and dispose of the property according to this rule for the best
interests of the ward, and to provide for his proper care,
custody and education;
(c)
To render a true and Just account of all the property of
the ward in his hands, and of all proceeds or interest derived
therefrom, and of the management and disposition of the
same, at the time designated by this rule and such other
times as the court directs; and at the expiration of his trust, to
settle his accounts with the court and deliver and pay over all
the property, effects, and monies remaining in his hands, or
due from him on such settlement, to the person lawfully
entitled thereto; and chan robles virtual law library

A guardian shall perform the following


duties:chanroblesvirtuallawlibrary
(a) To pay the just debts of the ward out of the personal
property and the income of the real property of the ward, If
the same is sufficient; otherwise, out of the real property of
the ward upon obtaining an order for its sale or encumbrance;
(b) To settle all accounts of his ward, and demand, sue for,
receive all debts due him, or may, with the approval of the
court, compound for the same and give discharges to the
debtor on receiving a fair and just dividend of the property
and effects; and to appear for and represent the ward in all
actions and special proceedings, unless another person is
appointed for that purpose;
(c) To manage the property of the ward frugally and without
waste, and apply the income and profits thereon, insofar as
may be necessary, to the comfortable and suitable
maintenance of the ward; and if such income and profits be
insufficient for that purpose, to sell or encumber the real or
personal property, upon being authorized by the court to do
so;
(d) To consent to a partition of real or personal property
owned by the ward jointly or in common with others upon
authority granted by the court after hearing, notice to
relatives of the ward, and a careful investigation as to the
necessity and propriety of the proposed action;
(e) To submit to the court a verified inventory of the property
of his ward within three months after his appointment, and
annually thereafter, the rendition of which may be required

upon the application of an interested person; chan robles


virtual law library
(f) To report to the court any property of the ward not included
in the inventory which is discovered, or succeeded to, or
acquired by the ward within three months after such
discovery, succession, or acquisition; and cralaw
(g) To render to the court for its approval an accounting of the
property one year from his appointment, and every year
thereafter or as often as may be required.cralaw
Sec. 18. Power and duty of the court The court may: chan
robles virtual law library
(a) Request the assistance of one or more commissioners in
the appraisal of the property of the ward reported in the initial
and subsequent inventories;
(b) Authorize reimbursement to the guardian, other than a
parent, of reasonable expenses incurred in the execution of
his trust, and allow payment of compensation for his services
as the court may deem just, not exceeding ten per centum of
the net income of the ward, if any; otherwise, in such amount
the court determines to be a reasonable compensation for his
services; and cralaw
(c) Upon complaint of the guardian or ward, or of any person
having actual or prospective interest in the property at the
ward, require any person suspected of having embezzled,
concealed, or disposed of any money, goods or interest, or a
written instrument belonging to the ward or his property to
appear for examination concerning any thereof and issue such
orders as would secure the property against such
embezzlement, concealment or conveyance.cralaw
Sec. 19. Petition to sell or encumber property. - When the
income of a property under guardianship is insufficient to
maintain and educate the ward, or when it is for his benefit
that his personal or real property or any part thereof be sold,
mortgaged or otherwise encumbered, and the proceeds
invested in safe and productive security, or in the
improvement or security of other real property, the guardian
may file a verified petition setting forth such facts, and
praying that an order issue authorizing the sale or
encumbrance of the property. chan robles virtual law library
Sec. 20. Order to show cause. If the sale or encumbrance is
necessary or would be beneficial to the ward, the court shall
order his next of kin and all person/s interested in the
property to appear at a reasonable time and place therein
specified and show cause why the petition should not be
granted.cralaw
Sec. 21. Hearing on return of order; costs. At the time and
place designated in the order to show cause, the court shall
hear the allegations and evidence of the petitioner and next of
kin, and other persons interested, together with their
witnesses, and grant or deny the petition as the best interests
of the ward may require.cralaw
Sec. 22. Contents of order for sale or encumbrance and its
duration; bond. If, after full examination, it is necessary, or
would be beneficial to the ward, to sell or encumber the
property, or some portion of it, the court shall order such sale
or encumbrance the proceeds of which shall be expended for
the maintenance or the education of the ward, or invested as
the circumstances may require. The order shall specify the
grounds for the sale or encumbrance and may direct that the
property ordered sold be disposed of at public sale, subject to
such conditions as to the time and manner of payment, and
security where a part of the payment is deferred. The original
bond of the guardian shall stand as security for the proper
appropriation of the proceeds of the sale or encumbrance, but

the court may, if deemed expedient, require an additional


bond as a condition for the sale or encumbrance. The
authority to sell or encumber shall not extend beyond one
year, unless renewed by the court. chan robles virtual law
library
Sec. 23. Court may order investment of proceeds and direct
management of property. The court may authorize and
require the guardian to invest the proceeds of sales or
encumbrances, and any other money of his ward in his hands,
in real or personal property, for the best interests of the ward,
and may make such other orders for the management,
investment, and disposition of the property and effects, as
circumstances may warrant.cralaw
Sec. 24. Grounds for removal or resignation of guardian.
When a guardian becomes insane or otherwise incapable of
discharging his trust or is found thereafter to be unsuitable, or
has wasted or mismanaged the property of the ward, or has
failed to render an account or make a return for thirty days
after it is due, the court may, upon reasonable notice to the
guardian, remove him as such and require him to surrender
the property of the ward to the person found to be lawfully
entitled thereto.cralaw
The court may allow the guardian to resign for justifiable
causes.cralaw
Upon the removal or resignation of the guardian, the court
shall appoint a new one. chan robles virtual law library
No motion for removal or resignation shall be granted unless
the guardian has submitted the proper accounting of the
property of the ward and the court has approved the
same.cralaw
Sec. 25. Ground for termination of guardianship. The court
motu proprio or upon verified motion of any person allowed to
file a petition for guardianship may terminate the
guardianship on the ground that the ward has come of age or
has died. The guardian shall notify the court of such fact
within ten days of its occurrence.cralaw
Sec. 26. Service of final and executory judgment or order.
The final and executory judgment or order shall be served
upon the Local Civil Registrar of the municipality or city where
the minor resides and the Register of Deeds of the province or
city where his property or any part thereof is situated. Both
the Local Civil Registrar and the Register of Deeds shall enter
the final and executory judgment or order in the appropriate
books in their offices.cralaw
Sec. 27. Effect of the rule. This Rule amends Rules 92 to 97
inclusive of the Rules of Court on guardianship of minors.
Guardianship of incompetents who are not minors shall
continue to be under the jurisdiction of the regular courts and
governed by the Rules of Court. chan robles virtual law library
Sec. 28. Effectivity. - This Rule shall take effect on May 1,
2003 following its publication in a newspaper of general
circulation not later than April 15, 2003.

A.M. No. 03-04-04-SC

April 22, 2003

RE: PROPOSED RULE ON CUSTODY OF MINORS AND WRIT OF


HABEAS CORPUS
IN RELATION TO CUSTODY OF MINORS
RESOLUTION
Acting on the letter of the Chairman of the Committee on
Revision of the Rules of Court submitting for this Courts

consideration and approval the Proposed Rule on custody of


Minors and Writ of Habeas Corpus in Relation to Custody of
Minors, the Court Resolved to APPROVE the same.
The Rule shall take effect on May 15, 2003 following its
publication in a newspaper of general circulation not later
than April 30, 2003.
April 22, 2003
Davide, Jr., C.J., Bellosillo, Puno, Vitug, Panganiban, YnaresSantiago, Sandoval-Gutierrez, Carpio, Austria-Martinez,
Corona, Carpio-Morales, Callejo, Sr., and Azcuna, JJ., concur.
Quisumbing, J., on official leave.

the court may order a social worker to make a case study of


the minor and the parties and to submit a report and
recommendation to the court at least three days before the
scheduled pre-trial.
Section 9. Notice of mandatory pre-trial. - Within fifteen days
after the filing of the answer or the expiration of the period to
file answer, the court shall issue an order: (1) fixing a date for
the pre-trial conference; (2) directing the parties to file and
serve their respective pre-trial briefs in such manner as shall
ensure receipt thereof by the adverse party at least three
days before the date of pre-trial; and (3) requiring the
respondent to present the minor before the court.
The notice of its order shall be served separately on both the
parties and their respective counsels. The pre-trial is
mandatory.

RULE ON CUSTODY OF MINORS AND WRIT OF HABEAS


CORPUS
IN RELATION TO CUSTODY OF MINORS
SECTION 1. Applicability. - This rule shall apply to petitions for
custody of minors and writs of habeas corpus in relation
thereto.
The Rules of Court shall apply suppletorily.
Section 2. Petition for custody of minors; who may file.- A
verified petition for the rightful custody of a minor may be
filed by any person claiming such right. The party against
whom it may be filed shall be designated as the respondent.
Section 3. Where to file petition. - The petition for custody of
minors shall be filed with the Family Court of the province or
city where the petitioner resides or where the minor may be
found.

Section 10. Contents of pre-trial brief. - The pre-trial brief shall


contain the following:
(a) A statement of the willingness of the parties to enter into
agreements that may be allowed by law, indicating its terms;
(b) A concise statement of their respective claims together
with the applicable laws and authorities;
(c) Admitted facts and proposed stipulations of facts;
(d) The disputed factual and legal issues;
(e) All the evidence to be presented, briefly stating or
describing its nature and purpose;
(f) The number and names of the witnesses and their
respective affidavits which shall serve as the affiant's
testimony on direct examination; and

Section 4. Contents of petition. - The verified petition shall


allege the following:

(g) Such other matters as the court may require to be


included in the pre-trial brief.

(a) The personal circumstances of the petitioner and of the


respondent;

Failure to file the pre-trial brief or to comply with its required


contents shall have the same effect as failure to appear at the
pre-trial.

(b) The name, age and present whereabouts of the minor and
his or her relationship to the petitioner and the respondent;
(c) The material operative facts constituting deprivation of
custody; and
(d) Such other matters which are relevant to the custody of
the minor.
The verified petition shall be accompanied by a certificate
against forum shopping, which the petitioner must sign
personally.
Section 5. Summons; personal service on respondent. - If the
court is satisfied that the petition is sufficient in form and
substance, it shall direct the clerk of court to issue summons,
which shall be served together with a copy of the petition
personally on the respondent.
Section 6. Motion to Dismiss. - A motion to dismiss the petition
is not allowed except on the ground of lack of jurisdiction over
the subject matter or over the parties. Any other ground that
might warrant the dismissal of the petition may be raised as
an affirmative defense in the answer.
Section 7. Verified Answer. - The respondent shall file an
answer to the petition, personally verified by him, within five
days after service of summons and a copy of the petition.
Section 8. Case study; duty of social worker. - Upon the filing
of the verified answer or the expiration of the period to file it,

Section 11. Effect of failure to appear at the pre-trial.-(a) If the


petitioner fails to appear personally at the pre-trial, the case
shall be dismissed, unless his counsel or a duly authorized
representative appears in court and proves a valid excuse for
the non-appearance of the petitioner.
(b) If the respondent has filed his answer but fails to appear at
the pre-trial, the petitioner shall be allowed to present his
evidence ex parte. The court shall then render judgment on
the basis of the pleadings and the evidence thus presented.
Section 12. What may be done at pre-trial. - At the pre-trial,
the parties may agree on the custody of the minor. If the
parties fail to agree, the court may refer the matter to a
mediator who shall have five days to effect an agreement
between the parties. If the issue is not settled through
mediation, the court shall proceed with the pre-trial
conference, on which occasion it shall consider such other
matters as may aid in the prompt disposition of the petition.
Section 13. Provisional order awarding custody. - After an
answer has been filed or after expiration of the period to file
it, the court may issue a provisional order awarding custody of
the minor. As far as practicable, the following order of
preference shall be observed in the award of custody:
(a) Both parents jointly;
(b) Either parent, taking into account all relevant
considerations, especially the choice of the minor over seven

years of age and of sufficient discernment, unless the parent


chosen is unfit;
(c) The grandparent, or if there are several grandparents, the
grandparent chosen by the minor over seven years of age and
of sufficient discernment, unless the grandparent chosen is
unfit or disqualified;
(d) The eldest brother or sister over twenty-one years of age,
unless he or she is unfit or disqualified;
(e) The actual custodian of the minor over twenty-one years of
age, unless the former is unfit or disqualified; or
(f) Any other person or institution the court may deem
suitable to provide proper care and guidance for the minor.
Section 14. Factors to consider in determining custody. - In
awarding custody, the court shall consider the best interests
of the minor and shall give paramount consideration to his
material and moral welfare. The best interests of the minor
refer to the totality of the circumstances and conditions as are
most congenial to the survival, protection, and feelings of
security of the minor encouraging to his physical,
psychological and emotional development. It also means the
least detrimental available alternative for safeguarding the
growth and development of the minor.
The court shall also consider the following:
(a) Any extrajudicial agreement which the parties may have
bound themselves to comply with respecting the rights of the
minor to maintain direct contact with the non custodial parent
on a regular basis, except when there is an existing threat or
danger of physical, mental, sexual or emotional violence
which endangers the safety and best interests of the minor;
(b) The desire and ability of one parent to foster an open and
loving relationship between the minor and the other parent;
(c) The health, safety and welfare of the minor;
(d) Any history of child or spousal abuse by the person
seeking custody or who has had any filial relationship with the
minor, including anyone courting the parent;
(e) The nature and frequency of contact with both parents;
(f) Habitual use of alcohol, dangerous drugs or regulated
substances;

The court, motu proprio or upon application under oath, may


issue ex parte a hold departure order, addressed to the
Bureau of Immigration and Deportation, directing it not to
allow the departure of the minor from the Philippines without
the permission of the court.
The Family Court issuing the hold departure order shall furnish
the Department of Foreign Affairs and the Bureau of
Immigration and Deportation of the Department of Justice a
copy of the hold departure order within twenty-four hours
from its issuance and through the fastest available means of
transmittal.
The hold departure order shall contain the following
information:
(a) The complete name (including the middle name), the date
and place of birth, the nationality and the place of last
residence of the person against whom a hold departure order
has been issued or whose departure from the country has
been enjoined;
(b) The complete title and docket number of the case in which
the hold departure order was issued;
(c) The specific nature of the case;
(d) The date of the hold departure order; and
(e) A recent photograph, if available, of the party against
whom a hold departure order has been issued or whose
departure from the country has been enjoined.
The court may recall the hold departure order motu proprio, or
upon verified motion of any of the parties after summary
hearing, subject to such terms and conditions as may be
necessary for the best interests of the minor.
Section 17. Protection Order. - The court may issue a
Protection Order requiring any person:
(a) To stay away from the home, school, business, or place of
employment of the minor, other parent or any other party, or
from any other specific place designated by the court;
(b) To cease and desist from harassing, intimidating, or
threatening such minor or the other parent or any person to
whom custody of the minor is awarded;

(g) Marital misconduct;

(c) To refrain from acts of commission or omission that create


an unreasonable risk to the health, safety, or welfare of the
minor;

(h) The most suitable physical, emotional, spiritual,


psychological and educational environment for the holistic
development and growth of the minor; and

(d) To permit a parent, or a party entitled to visitation by a


court order or a separation agreement, to visit the minor at
stated periods;

(i) The preference of the minor over seven years of age and of
sufficient discernment, unless the parent chosen is unfit.

(e) To permit a designated party to enter the residence during


a specified period of time in order to take personal belongings
not contested in a proceeding pending with the Family Court;
and

Section 15. Temporary visitation rights. - The court shall


provide in its order awarding provisional custody appropriate
visitation rights to the non-custodial parent or parents, unless
the court finds said parent or parents unfit or disqualified.
The temporary custodian shall give the court and non
custodial parent or parents at least five days' notice of any
plan to change the residence of the minor or take him out of
his residence for more than three days provided it does not
prejudice the visitation rights of the non-custodial parent or
parents.
Section 16. Hold Departure Order. - The minor child subject of
the petition shall not be brought out of the country without
prior order from the court while the petition is pending.

(f) To comply with such other orders as are necessary for the
protection of the minor.
Section 18. Judgment. - After trial, the court shall render
judgment awarding the custody of the minor to the proper
party considering the best interests of the minor.
If it appears that both parties are unfit to have the care and
custody of the minor, the court may designate either the
paternal or maternal grandparent of the minor, or his oldest
brother or sister, or any reputable person to take charge of
such minor, or commit him to any suitable home for children.

In its judgment, the court may order either or both parents to


give an amount necessary for the support, maintenance and
education of the minor, irrespective of who may be its
custodian. In determining the amount of support, the court
may consider the following factors: (1) the financial resources
of the custodial and non-custodial parent and those of the
minor; (2) the physical and emotional health, special needs,
and aptitude of the minor; (3) the standard of living the minor
has been accustomed to; and (4) the non-monetary
contributions that the parents would make toward the care
and well-being of the minor.
The court may also issue any order that is just and reasonable
permitting the parent who is deprived of the care and custody
of the minor to visit or have temporary custody.
Section 19. Appeal. - No appeal from the decision shall be
allowed unless the appellant has filed a motion for
reconsideration or new trial within fifteen days from notice of
judgment.
An aggrieved party may appeal from the decision by filing a
Notice of Appeal within fifteen days from notice of the denial
of the motion for reconsideration or new trial and serving a
copy thereof on the adverse parties.
Section 20. Petition for writ of habeas corpus. - A verified
petition for a writ of habeas corpus involving custody of
minors shall be filed with the Family Court. The writ shall be
enforceable within its judicial region to which the Family Court
belongs.
However, the petition may be filed with the regular court in
the absence of the presiding judge of the Family Court,
provided, however, that the regular court shall refer the case
to the Family Court as soon as its presiding judge returns to
duty.
The petition may also be filed with the appropriate regular
courts in places where there are no Family Courts.
The writ issued by the Family Court or the regular court shall
be enforceable in the judicial region where they belong.
The petition may likewise be filed with the Supreme Court,
Court of Appeals, or with any of its members and, if so
granted, the writ shall be enforceable anywhere in the
Philippines. The writ may be made returnable to a Family
Court or to any regular court within the region where the
petitioner resides or where the minor may be found for
hearing and decision on the merits.
Upon return of the writ, the court shall decide the issue on
custody of minors. The appellate court, or the member
thereof, issuing the writ shall be furnished a copy of the
decision.
Section 21. Confidentiality of proceedings. - The hearings on
custody of minors may, at the discretion of the court, be
closed to the public and the records of the case shall not be
released to non-parties without its approval.
Section 22. Effectivity. - This Rule shall take effect on May 15,
2003 following its publication in a newspaper of general
circulation not later than April 30, 2003.
4. REMEDIAL LAW; SPECIAL PROCEEDINGS; GUARDIANSHIP;
COURTS SHOULD NOT APPOINT PERSONS AS GUARDIANS
WHO ARE NOT WITHIN THE JURISDICTION OF OUR COURTS
FOR THEY WILL FIND IT DIFFICULT TO PROTECT THE WARDS.
This Court has held that courts should not appoint persons
as guardians who are not within the jurisdiction of our courts
for they will find it difficult to protect the wards. In Guerrero
vs. Teran, this Court held: "Doa Maria Muoz y Gomez was,

as above indicated, removed upon the theory that her


appointment was void because she did not reside in the
Philippine Islands. There is nothing in the law which requires
the courts to appoint residents only as administrators or
guardians. However, notwithstanding the fact that there are
no statutory requirements upon this question, the courts,
charged with the responsibilities of protecting the estates of
deceased persons, wards of the estate, etc., will find much
difficulty in complying with this duty by appointing
administrators and guardians who are not personally subject
to their jurisdiction. Notwithstanding that there is no statutory
requirement, the courts should not consent to the
appointment of persons as administrators and guardians who
are not personally subject to the jurisdiction of our courts
here."||| (Vancil v. Belmes, G.R. No. 132223, [June 19, 2001],
411 PHIL 359-368)
1. REMEDIAL LAW; COURTS; JURISDICTION; UNDUE
INTERFERENCE IN THE PROCEEDINGS AND PROCESSES OF A
CO-EQUAL AND COORDINATE BRANCH OF A COURT NOT
ALLOWED. Jurisdiction is vested in the court not in any
particular branch or judge, and as a corollary rule, the various
branches of the Court of First Instance of a judicial district are
coordinate and co-equal courts one branch stands on the
same level as the other (Mateo C. Bacalso, et al. vs. Hon.
Modesto R. Ramolete, et al., 21 SCRA 519). Undue
interference by one on the proceedings and processes of
another is prohibited by law. In the language of this Court, the
various branches of the Court of First Instance of a province or
city, having as they have the same or equal authority and
exercising as they do concurrent and coordinate jurisdiction
should not, cannot, and are not permitted to interfere with
their respective cases, much less with their orders or
judgments (De Leon vs. Salvador, 36 SCRA 567;
Cabigao vs. Del Rosario, 44 Phil. 182). A contrary rule would
obviously lead to confusion and might seriously hinder the
administration of justice. A judge is competent to act so long
as the case remains before him, but after it passed from his
branch to the other, the case could be acted upon by the
judge of the latter branch(PNB vs. Javellana, 92 Phil. 525).
Otherwise, an anomalous situation would occur at the
detriment of the party-litigants who are likewise confused
where to appear and plead their cause.|||

5. ID.; ID.; ID.; GUARDIANSHIP; GUARDIANSHIP COURT


GENERALLY CANNOT ORDER DELIVERY OF CONCEALED OR
EMBEZZLED PROPERTY OF THE WARD. Generally, the
guardianship court exercising special and limited jurisdiction
cannot actually order the delivery of the propertyof the ward
found to be embezzled, concealed or conveyed. In a
categorical language of this Court, only in extreme cases,
where property clearly belongs to the ward or where his title
thereto has been already judicially decided, may the court
direct its delivery to the guardian (Cui vs. Piccio, et al., 91 Phil
712). In effect, there can only be delivery or return of the
embezzled, concealed or conveyed property of the ward,
where the right or title of said ward is clear and undisputable.
However, where title to any property said to be embezzled,
concealed or conveyed is in dispute, under the Cui case, the
determination of said title or right whether in favor of the
person said to have embezzled, concealed or conveyed the
property must be determined in a separate ordinary action
and not in guardianship proceedings.||| (Parco v. Court of
Appeals, G.R. No. L-33152, [January 30, 1982])

The Order to Hear the Motion


to Lift the Award of Custody
Pendente Lite Proper

To begin with, grave abuse of discretion is committed when an


act is 1) done contrary to the Constitution, the law or
jurisprudence; 20 or 2) executed "whimsically or arbitrarily" in
a manner "so patent and so gross as to amount to an evasion
of a positive duty, or to a virtual refusal to perform the duty
enjoined." 21 What constitutes grave abuse of discretion is
such capricious and arbitrary exercise of judgment as that
which is equivalent, in the eyes of the law, to lack of
jurisdiction. 22
On the basis of these criteria, we hold that the CA did not
commit grave abuse of discretion. SaCDTA
First, there can be no question that a court of competent
jurisdiction is vested with the authority to resolve even
unassigned issues. It can do so when such a step is
indispensable or necessary to a just resolution of issues raised
in a particular pleading or when the unassigned issues are
inextricably linked or germane to those that have been
pleaded. 23 This truism applies with more force when the
relief granted has been specifically prayed for, as in this case.
Explicit in the Motion to Dismiss 24 filed by Joycelyn before
the RTC is her ancillary prayer for the court to lift and set
aside its April 3, 2002 Order awarding to Crisanto
custody pendente lite of their minor son. Indeed, the
necessary consequence of granting her Motion to Dismiss
would have been the setting aside of the Order awarding
Crisanto provisional custody of the child. Besides, even if the
Motion to Dismiss was denied as indeed it was the trial
court, in its discretion and if warranted, could still have
granted the ancillary prayer as an alternative relief.
Parenthetically, Joycelyn's Motion need not have been verified
because of the provisional nature of the April 3, 2002
Order. Under Rule 38 25 of the Rules of Court, verification is
required only when relief is sought from a final and executory
Order. Accordingly, the court may set aside its own orders
even without a proper motion, whenever such action is
warranted by the Rules and to prevent a miscarriage of
justice. 26
||| (Pablo-Gualberto v. Gualberto, G.R. No. 154994, 156254,
[June 28, 2005], 500 PHIL 226-253)
This Court has been very consistent in characterizing the
funds being administered by SSS as a trust fund for the
welfare and benefit of workers and employees in the private
sector. 37 In United Christian Missionary v. Social Security
Commission 38 we were unequivocal in declaring the funds
contributed to the Social Security System by compulsion of
law as funds belonging to the members which were merely
held in trust by the government, and resolutely imposed the
duty upon the trustee to desist from any and all acts which
would diminish the property rights of owners and beneficiaries
of the trust fund. Consistent with this declaration, it would
indeed be very reasonable to construe the authority of the
SSC to provide for the compensation of SSS personnel in
accordance with the established rules governing the
remuneration of trustees
. . . the modern rule is to give the trustee a reasonable
remuneration for his skill and industry . . . In deciding what is
a reasonable compensation for a trustee the court will
consider the amount of income and capital received and
disbursed, the pay customarily given to agents or servants for
similar work, the success or failure of the work of the trustee,
any unusual skill which the trustee had and used, the amount
of risk and responsibility, the time consumed, the character of
the work done (whether routine or of unusual difficulty) and
any other factors which prove the worth of the trustee's
services to the cestuis . . . The court has power to make
extraordinary compensation allowances, but will not do so

unless the trustee can prove that he has performed work


beyond the ordinary duties of his office and has engaged in
especially arduous work. 39
On the basis of the foregoing pronouncement, we do not find
the signing bonus to be a truly reasonable compensation. The
gratuity was of course the SSC's gesture of good will and
benevolence for the conclusion of collective negotiations
between SSC and ACCESS, as the CNA would itself state, but
for what objective? Agitation and propaganda which are so
commonly practiced in private sector labor-management
relations have no place in the bureaucracy and that only a
peaceful collective negotiation which is concluded within a
reasonable time must be the standard for interaction in the
public sector. This desired conduct among civil servants
should not come, we must stress, with a price tag which is
what the signing bonus appears to be.
||| (Social Security System v. Commission on Audit, G.R. No.
149240, [July 11, 2002], 433 PHIL 946-963)

REPUBLIC ACT NO. 8043

AN ACT ESTABLISHING THE RULES TO GOVERN INTERCOUNTRY ADOPTION OF FILIPINO CHILDREN, AND FOR OTHER
PURPOSES.

ARTICLE I
GENERAL PROVISIONS
Section 1. Short Title. This Act shall be known as the "InterCountry Adoption Act of 1995."
Sec. 2. Declaration of Policy. It is hereby declared the policy
of the State to provide every neglected and abandoned child
with a family that will provide such child with love and care as
well as opportunities for growth and development. Towards
this end, efforts shall be exerted to place the child with an
adoptive family in the Philippines. However, recognizing that
inter-country adoption may be considered as allowing aliens
not presently allowed by law to adopt Filipino children if such
children cannot be adopted by qualified Filipino citizens or
aliens, the State shall take measures to ensure that intercountry adoptions are allowed when the same shall prove
beneficial to the child's best interests, and shall serve and
protect his/her fundamental rights.chan robles virtual law
library
Sec. 3. Definition of Terms. As used in this Act. the term:
(a) Inter-country adoption refers to the socio-legal process of
adopting a Filipino child by a foreigner or a Filipino citizen
permanently residing abroad where the petition is filed, the
supervised trial custody is undertaken, and the decree of
adoption is issued outside the Philippines.
chan robles virtual law library
(b) Child means a person below fifteen (15) years of age
unless sooner emancipated by law.
(c) Department refers to the Department of Social Welfare and
Development of the Republic of the Philippines.
(d) Secretary refers to the Secretary of the Department of
Social Welfare and Development.
(e) Authorized and accredited agency refers to the State
welfare agency or a licensed adoption agency in the country

of the adopting parents which provide comprehensive social


services and which is duly recognized by the Department.
(f) Legally-free child means a child who has been voluntarily
or involuntarily committed to the Department, in accordance
with the Child and Youth Welfare Code.
(g) Matching refers to the judicious pairing of the adoptive
child and the applicant to promote a mutually satisfying
parent-child relationship.
(h) Board refers to the Inter-country Adoption Board.
ARTICLE II
THE INTER-COUNTRY ADOPTION BOARD
Sec. 4. The Inter-Country Adoption Board. There is hereby
created the Inter-Country Adoption Board, hereinafter referred
to as the Board to act as the central authority in matters
relating to inter-country adoption. It shall act as the policymaking body for purposes of carrying out the provisions of
this Act, in consultation and coordination with the
Department, the different child-care and placement agencies,
adoptive agencies, as well as non-governmental organizations
engaged in child-care and placement activities. As such, it
shall:
(a) Protect the Filipino child from abuse, exploitation,
trafficking and/or sale or any other practice in connection with
adoption which is harmful, detrimental, or prejudicial to the
child;
chan robles virtual law library
(b) Collect, maintain, and preserve confidential information
about the child and the adoptive parents;
(c) Monitor, follow up, and facilitate completion of adoption of
the child through authorized and accredited agency;
(d) Prevent improper financial or other gain in connection with
an adoption and deter improper practices contrary to this Act;
(e) Promote the development of adoption services including
post-legal adoption;
(f) License and accredit child-caring/placement agencies and
collaborate with them in the placement of Filipino children;
(g) Accredit and authorize foreign adoption agency in the
placement of Filipino children in their own country; and
(h) Cancel the license to operate and blacklist the child-caring
and placement agency or adoptive agency involved from the
accreditation list of the Board upon a finding of violation of
any provision under this Act.

Sec. 5. Composition of the Board. The Board shall be


composed of the Secretary of the Department as ex officio
Chairman, and six (6) other members to be appointed by the
President for a nonrenewable term of six (6)
years: Provided, That there shall be appointed one (1)
psychiatrist or psychologist, two (2) lawyers who shall have at
least the qualifications of a regional trial court judge, one (1)
registered social worker and two (2) representatives from nongovernmental organizations engaged in child-caring and
placement activities. The members of the Board shall receive
a per diem allowance of One thousand five hundred pesos
(P1,500) for each meeting attended by them: Provided,
further, That no compensation shall be paid for more than four
(4) meetings a month.chan robles virtual law library

chan robles virtual law library

Sec. 6. Powers and Functions of the Board. The Board shall


have the following powers and
functions:chanroblesvirtualawlibrary

(a) to prescribe rules and regulations as it may deem


reasonably necessary to carry out the provisions of this Act,
after consultation and upon favorable recommendation of the
different agencies concerned with the child-caring, placement,
and adoption;
chan robles virtual law library
(b) to set the guidelines for the convening of an Inter-country
Adoption Placement Committee which shall be under the
direct supervision of the Board;
(c) to set the guidelines for the manner by which
selection/matching of prospective adoptive parents and
adoptive child can be made;
(d) to determine a reasonable schedule of fees and charges to
be exacted in connection with the application for adoption;
(e) to determine the form and contents of the application for
inter-country adoption;
(g) to institute systems and procedures to prevent improper
financial gain in connection with adoption and deter improper
practices which are contrary to this Act;
(h) to promote the development of adoption services,
including post-legal adoption services,
(i) to accredit and authorize foreign private adoption agencies
which have demonstrated professionalism, competence and
have consistently pursued non-profit objectives to engage in
the placement of Filipino children in their own
country: Provided, That such foreign private agencies are duly
authorized and accredited by their own government to
conduct inter-country adoption: Provided, however, That the
total number of authorized and accredited foreign private
adoption agencies shall not exceed one hundred (100) a year;
(j) to take appropriate measures to ensure confidentiality of
the records of the child, the natural parents and the adoptive
parents at all times;
(k) to prepare, review or modify, and thereafter, recommend
to the Department of Foreign Affairs, Memoranda of
Agreement respecting inter-country adoption consistent with
the implementation of this Act and its stated goals, entered
into, between and among foreign governments, international
organizations and recognized international non-governmental
organizations;
(l) to assist other concerned agencies and the courts in the
implementation of this Act, particularly as regards
coordination with foreign persons, agencies and other entities
involved in the process of adoption and the physical transfer
of the child; and
(m) to perform such other functions on matters relating to
inter-country adoption as may be determined by the
President.
ARTICLE III
PROCEDURE
Sec. 7. Inter-Country Adoption as the Last Resort. The Board
shall ensure that all possibilities for adoption of the child

under the Family Code have been exhausted and that intercountry adoption is in the best interest of the child. Towards
this end, the Board shall set up the guidelines to ensure that
steps will be taken to place the child in the Philippines before
the child is placed for inter-country adoption: Provided,
however, That the maximum number that may be allowed for
foreign adoption shall not exceed six hundred (600) a year for
the first five (5) years.chan robles virtual law library
Sec. 8. Who May be Adopted. Only a legally free child may
be the subject of inter-country adoption. In order that such
child may be considered for placement, the following
documents must be submitted to the Board:

Sec. 10. Where to File Application. An application to adopt a


Filipino child shall be filed either with the Philippine Regional
Trial Court having jurisdiction over the child, or with the Board,
through an intermediate agency, whether governmental or an
authorized and accredited agency, in the country of the
prospective adoptive parents, which application shall be in
accordance with the requirements as set forth in the
implementing rules and regulations to be promulgated by the
Board.

(a)Child study;
chan robles virtual law library

The application shall be supported by the following


documents written and officially translated in English.

(b)Birth certificate/foundling certificate;


(c)Deed of voluntary commitment/decree of
abandonment/death certificate of parents;

(a) Birth certificate of applicant(s);

(d)Medical evaluation /history;

chan robles virtual law library

(e)Psychological evaluation, as necessary; and

(b) Marriage contract, if married, and divorce decree, if


applicable;

(f)Recent photo of the child.

Sec. 9. Who May Adopt. An alien or a Filipino citizen


permanently residing abroad may file an application for intercountry adoption of a Filipino child if
he/she:chanroblesvirtualawlibrary

(c) Written consent of their biological or adoptive children


above ten (10) years of age, in the form of sworn statement;
(d) Physical, medical and psychological evaluation by a duly
licensed physician and psychologist;
(e) Income tax returns or any document showing the financial
capability of the applicant(s);
(f) Police clearance of applicant(s);

(a) is at least twenty-seven (27) years of age and at least


sixteen (16) years older than the child to be adopted, at the
time of application unless the adopter is the parent by nature
of the child to be adopted or the spouse of such
parent:chanroblesvirtualawlibrary

(g) Character reference from the local church/minister, the


applicant's employer and a member of the immediate
community who have known the applicant(s) for at least five
(5) years; and

chan robles virtual law library

(h) Recent postcard-size pictures of the applicant(s) and his


immediate family;

(b) if married, his/her spouse must jointly file for the adoption;
(c) has the capacity to act and assume all rights and
responsibilities of parental authority under his national laws,
and has undergone the appropriate counseling from an
accredited counselor in his/her country;

The Rules of Court shall apply in case of adoption by judicial


proceedings.

(d) has not been convicted of a crime involving moral


turpitude;chan robles virtual law library

chan robles virtual law library

(e) is eligible to adopt under his/her national law;


(f) is in a position to provide the proper care and support and
to give the necessary moral values and example to all his
children, including the child to be adopted;
(g) agrees to uphold the basic rights of the child as embodied
under Philippine laws, the U.N. Convention on the Rights of
the Child, and to abide by the rules and regulations issued to
implement the provisions of this Act;
(h) comes from a country with whom the Philippines has
diplomatic relations and whose government maintains a
similarly authorized and accredited agency and that adoption
is allowed under his/her national laws; and
(i) possesses all the qualifications and none of the
disqualifications provided herein and in other applicable
Philippine laws.

Sec. 11. Family Selection/Matching. No child shall be


matched to a foreign adoptive family unless it is satisfactorily
shown that the child cannot be adopted locally. The clearance,
as issued by the Board, with the copy of the minutes of the
meetings, shall form part of the records of the child to be
adopted. When the Board is ready to transmit the Placement
Authority to the authorized and accredited inter-country
adoption agency and all the travel documents of the child are
ready, the adoptive parents, or any one of them, shall
personally fetch the child in the Philippines.chan robles virtual
law library

Sec. 12. Pre-adoptive Placement Costs. The applicant(s)


shall bear the following costs incidental to the placement of
the child;

(a) The cost of bringing the child from the Philippines to the
residence of the applicant(s) abroad, including all travel
expenses within the Philippines and abroad; and
chan robles virtual law library
(b) The cost of passport, visa, medical examination and
psychological evaluation required, and other related
expenses.

(1)consent for an adoption was acquired through, or attended


by coercion, fraud, improper material inducement;
chan robles virtual law library
(2)there is no authority from the Board to effect adoption;
(3)the procedures and safeguards placed under the law for
adoption were not complied with; and
(4)the child to be adopted is subjected to, or exposed to
danger, abuse and exploitation.

Sec. 13. Fees, Charges and Assessments. Fees, charges,


and assessments collected by the Board in the exercise of its
functions shall be used solely to process applications for intercountry adoption and to support the activities of the Board.

chan robles virtual law library

Sec. 14. Supervision of Trial Custody. The governmental


agency or the authorized and accredited agency in the
country of the adoptive parents which filed the application for
inter-country adoption shall be responsible for the trial
custody and the care of the child. It shall also provide family
counseling and other related services. The trial custody shall
be for a period of six (6) months from the time of
placement. Only after the lapse of the period of trial custody
shall a decree of adoption be issued in the said country a copy
of which shall be sent to the Board to form part of the records
of the child.chan robles virtual law library

During the trial custody, the adopting parent(s) shall submit to


the governmental agency or the authorized and accredited
agency, which shall in turn transmit a copy to the Board, a
progress report of the child's adjustment. The progress report
shall be taken into consideration in deciding whether or not to
issue the decree of adoption.
The Department of Foreign Affairs shall set up a system by
which Filipino children sent abroad for trial custody are
monitored and checked as reported by the authorized and
accredited inter-country adoption agency as well as the
repatriation to the Philippines of a Filipino child whose
adoption has not been approved.
Sec. 15. Executive Agreements. The Department of Foreign
Affairs, upon representation of the Board, shall cause the
preparation of Executive Agreements with countries of the
foreign adoption agencies to ensure the legitimate
concurrence of said countries in upholding the safeguards
provided by this Act.
ARTICLE IV
PENALTIES
Sec. 16. Penalties. (a) Any person who shall knowingly
participate in the conduct or carrying out of an illegal
adoption, in violation of the provisions of this Act, shall be
punished with a penalty of imprisonment ranging from six (6)
years and one (1) day to twelve (12) years and/or a fine of not
less than Fifty thousand pesos (P50,000), but not more than
Two hundred thousand pesos (P200.000), at the discretion of
the court. For purposes of this Act, an adoption is illegal if it is
effected in any manner contrary to the provisions of this Act
or established State policies, its implementing rules and
regulations, executive agreements, and other laws pertaining
to adoption. Illegality may be presumed from the following
acts:

(b)Any person who shall violate established regulations


relating to the confidentiality and integrity of records,
documents and communications of adoption applications,
cases and processes shall suffer the penalty of imprisonment
ranging from one (1) year and one (1) day to two (2) years,
and/or a fine of not less than Five thousand pesos (P5,000),
but not more than Ten thousand pesos (P10,000), at the
discretion of the court.

chan robles virtual law library

A penalty lower by two (2) degrees than that prescribed for


the consummated felony under this Article shall be imposed
upon the principals of the attempt to commit any of the acts
herein enumerated.

Acts punishable under this Article, when committed by a


syndicate or where it involves two or more children shall be
considered as an offense constituting child trafficking and
shall merit the penalty of reclusion perpetua.
Acts punishable under this Article are deemed committed by a
syndicate if carried out by a group of three (3) or more
persons conspiring and/or confederating with one another in
carrying out any of the unlawful acts defined under this
Article.Penalties as are herein provided shall be in addition to
any other penalties which may be imposed for the same acts
punishable under other laws, ordinances, executive orders,
and proclamations.chan robles virtual law library
Sec. 17. Public Officers as Offenders. Any government
official, employee or functionary who shall be found guilty of
violating any of the provisions of this Act, or who shall
conspire with private individuals shall, in addition to the
above-prescribed penalties, be penalized in accordance with
existing civil service laws, rules and
regulations: Provided, That upon the filing of a case, either
administrative or criminal, said government official, employee
or functionary concerned shall automatically suffer suspension
until the resolution of the case.
ARTICLE V
FINAL PROVISIONS
Sec. 18. Implementing Rules and Regulations. The Intercountry Adoption Board, in coordination with the Council for
the Welfare of Children, the Department of Foreign Affairs, and
the Department of Justice, after due consultation with
agencies involved in child-care and placement, shall
promulgate the necessary rules and regulations to implement
the provisions of this Act within six (6) months after its
effectivity.

Sec. 19. Appropriations. The amount of Five million pesos


(P5,000,000) is hereby appropriated from the proceeds of the
Lotto for the initial operations of the Board and subsequently
the appropriations of the same shall be included in the
General Appropriations Act for the year following its
enactment.
Sec. 20. Separability Clause. If any provision, or part hereof
is held invalid or unconstitutional, the remainder of the law or
the provision not otherwise affected, shall remain valid and
subsisting.

Any voluntary or involuntary termination of parental authority


shall be administratively or judicially declared so as to
establish the status of the child as "legally available for
adoption" and his/her custody transferred to the Department
of Social Welfare and Development or to any duly licensed
and accredited child-placing or child-caring agency, which
entity shall be authorized to take steps for the permanent
placement of the child;
(iv) Conduct public information and educational campaigns to
promote a positive environment for adoption;

Sec. 21. Repealing Clause. Any law, decree, executive


order, administrative order or rules and regulations contrary
to, or inconsistent with the provisions of this Act are hereby
repealed, modified or amended accordingly.chan robles virtual
law library

(v) Ensure that sufficient capacity exists within government


and private sector agencies to handle adoption inquiries,
process domestic adoption applications, and offer adoptionrelated services including, but not limited to, parent
preparation and post-adoption education and counseling; and

Sec. 22. Effectivity Clause. This Act shall take effect fifteen
(15) days after its publication in two (2) newspapers of
general circulation.

(vi) Encourage domestic adoption so as to preserve the child's


identity and culture in his/her native land, and only when this
is not available shall intercountry adoption be considered as a
last resort.

Republic Act No. 8552

February 25, 1998

AN ACT ESTABLISHING THE RULES AND POLICIES ON THE


DOMESTIC ADOPTION OF FILIPINO CHILDREN AND FOR OTHER
PURPOSES
Be it enacted by the Senate and House of Representatives of
the Philippines in Congress assembled::
ARTICLE I
GENERAL PROVISIONS
Section 1. Short Title. This Act shall be known as the
"Domestic Adoption Act of 1998."
Section 2. Declaration of Policies. (a) It is hereby declared
the policy of the State to ensure that every child remains
under the care and custody of his/her parent(s) and be
provided with love, care, understanding and security towards
the full and harmonious development of his/her personality.
Only when such efforts prove insufficient and no appropriate
placement or adoption within the child's extended family is
available shall adoption by an unrelated person be
considered.
(b) In all matters relating to the care, custody and adoption of
a child, his/her interest shall be the paramount consideration
in accordance with the tenets set forth in the United Nations
(UN) Convention on the Rights of the Child; UN Declaration on
Social and Legal Principles Relating to the Protection and
Welfare of Children with Special Reference to Foster
Placement and Adoption, Nationally and Internationally; and
the Hague Convention on the Protection of Children and
Cooperation in Respect of Intercountry Adoption. Toward this
end, the State shall provide alternative protection and
assistance through foster care or adoption for every child who
is neglected, orphaned, or abandoned.
(c) It shall also be a State policy to:
(i) Safeguard the biological parent(s) from making hurried
decisions to relinquish his/her parental authority over his/her
child;
(ii) Prevent the child from unnecessary separation from his/her
biological parent(s);
(iii) Protect adoptive parent(s) from attempts to disturb his/her
parental authority and custody over his/her adopted child.

Section 3. Definition of Terms. For purposes of this Act, the


following terms shall be defined as:
(a) "Child" is a person below eighteen (18) years of age.
(b) "A child legally available for adoption" refers to a child who
has been voluntarily or involuntarily committed to the
Department or to a duly licensed and accredited child-placing
or child-caring agency, freed of the parental authority of
his/her biological parent(s) or guardian or adopter(s) in case of
rescission of adoption.
(c) "Voluntarily committed child" is one whose parent(s)
knowingly and willingly relinquishes parental authority to the
Department.
(d) "Involuntarily committed child" is one whose parent(s),
known or unknown, has been permanently and judicially
deprived of parental authority due to abandonment;
substantial, continuous, or repeated neglect; abuse; or
incompetence to discharge parental responsibilities.
(e) "Abandoned child" refers to one who has no proper
parental care or guardianship or whose parent(s) has deserted
him/her for a period of at least six (6) continuous months and
has been judicially declared as such.
(f) "Supervised trial custody" is a period of time within which a
social worker oversees the adjustment and emotional
readiness of both adopter(s) and adoptee in stabilizing their
filial relationship.
(g) "Department" refers to the Department of Social Welfare
and Development.
(h) "Child-placing agency" is a duly licensed and accredited
agency by the Department to provide comprehensive child
welfare services including, but not limited to, receiving
applications for adoption, evaluating the prospective adoptive
parents, and preparing the adoption home study.
(i) "Child-caring agency" is a duly licensed and accredited
agency by the Department that provides twenty four (24)hour residential care services for abandoned, orphaned,
neglected, or voluntarily committed children.
(j) "Simulation of birth" is the tampering of the civil registry
making it appear in the birth records that a certain child was
born to a person who is not his/her biological mother, causing
such child to lose his/her true identity and status.

ARTICLE II
PRE-ADOPTION SERVICES

(i) a former Filipino citizen who seeks to adopt a relative


within the fourth (4th) degree of consanguinity or affinity; or

Section 4. Counseling Service. The Department shall provide


the services of licensed social workers to the following:

(ii) one who seeks to adopt the legitimate son/daughter of


his/her Filipino spouse; or

(a) Biological Parent(s) Counseling shall be provided to the


parent(s) before and after the birth of his/her child. No binding
commitment to an adoption plan shall be permitted before the
birth of his/her child. A period of six (6) months shall be
allowed for the biological parent(s) to reconsider any decision
to relinquish his/her child for adoption before the decision
becomes irrevocable. Counseling and rehabilitation services
shall also be offered to the biological parent(s) after he/she
has relinquished his/her child for adoption.

(iii) one who is married to a Filipino citizen and seeks to adopt


jointly with his/her spouse a relative within the fourth (4th)
degree of consanguinity or affinity of the Filipino spouse; or

Steps shall be taken by the Department to ensure that no


hurried decisions are made and all alternatives for the child's
future and the implications of each alternative have been
provided.
(b) Prospective Adoptive Parent(s) Counseling sessions,
adoption fora and seminars, among others, shall be provided
to prospective adoptive parent(s) to resolve possible adoption
issues and to prepare him/her for effective parenting.
(c) Prospective Adoptee Counseling sessions shall be
provided to ensure that he/she understands the nature and
effects of adoption and is able to express his/her views on
adoption in accordance with his/her age and level of maturity.
Section 5. Location of Unknown Parent(s). It shall be the duty
of the Department or the child-placing or child-caring agency
which has custody of the child to exert all efforts to locate
his/her unknown biological parent(s). If such efforts fail, the
child shall be registered as a foundling and subsequently be
the subject of legal proceedings where he/she shall be
declared abandoned.
Section 6. Support Services. The Department shall develop a
pre-adoption program which shall include, among others, the
above mentioned services.

(c) The guardian with respect to the ward after the


termination of the guardianship and clearance of his/her
financial accountabilities.
Husband and wife shall jointly adopt, except in the following
cases:
(i) if one spouse seeks to adopt the legitimate son/daughter of
the other; or
(ii) if one spouse seeks to adopt his/her own illegitimate
son/daughter: Provided, However, that the other spouse has
signified his/her consent thereto; or
(iii) if the spouses are legally separated from each other.
In case husband and wife jointly adopt, or one spouse adopts
the illegitimate son/daughter of the other, joint parental
authority shall be exercised by the spouses.
Section 8. Who May Be Adopted. The following may be
adopted:
(a) Any person below eighteen (18) years of age who has
been administratively or judicially declared available for
adoption;
(b) The legitimate son/daughter of one spouse by the other
spouse;
(c) An illegitimate son/daughter by a qualified adopter to
improve his/her status to that of legitimacy;

ARTICLE III
ELIGIBILITY

(d) A person of legal age if, prior to the adoption, said person
has been consistently considered and treated by the
adopter(s) as his/her own child since minority;

Section 7. Who May Adopt. The following may adopt:

(e) A child whose adoption has been previously rescinded; or

(a) Any Filipino citizen of legal age, in possession of full civil


capacity and legal rights, of good moral character, has not
been convicted of any crime involving moral turpitude,
emotionally and psychologically capable of caring for children,
at least sixteen (16) years older than the adoptee, and who is
in a position to support and care for his/her children in
keeping with the means of the family. The requirement of
sixteen (16) year difference between the age of the adopter
and adoptee may be waived when the adopter is the
biological parent of the adoptee, or is the spouse of the
adoptee's parent;

(f) A child whose biological or adoptive parent(s) has


died: Provided, That no proceedings shall be initiated within
six (6) months from the time of death of said parent(s).

(b) Any alien possessing the same qualifications as above


stated for Filipino nationals: Provided, That his/her country has
diplomatic relations with the Republic of the Philippines, that
he/she has been living in the Philippines for at least three (3)
continuous years prior to the filing of the application for
adoption and maintains such residence until the adoption
decree is entered, that he/she has been certified by his/her
diplomatic or consular office or any appropriate government
agency that he/she has the legal capacity to adopt in his/her
country, and that his/her government allows the adoptee to
enter his/her country as his/her adopted
son/daughter: Provided, Further, That the requirements on
residency and certification of the alien's qualification to adopt
in his/her country may be waived for the following:

Section 9. Whose Consent is Necessary to the Adoption.


After being properly counseled and informed of his/her right to
give or withhold his/her approval of the adoption, the written
consent of the following to the adoption is hereby required:
(a) The adoptee, if ten (10) years of age or over;
(b) The biological parent(s) of the child, if known, or the legal
guardian, or the proper government instrumentality which has
legal custody of the child;
(c) The legitimate and adopted sons/daughters, ten (10) years
of age or over, of the adopter(s) and adoptee, if any;
(d) The illegitimate sons/daughters, ten (10) years of age or
over, of the adopter if living with said adopter and the latter's
spouse, if any; and
(e) The spouse, if any, of the person adopting or to be
adopted.
ARTICLE IV
PROCEDURE

Section 10. Hurried Decisions. In all proceedings for


adoption, the court shall require proof that the biological
parent(s) has been properly counseled to prevent him/her
from making hurried decisions caused by strain or anxiety to
give up the child, and to sustain that all measures to
strengthen the family have been exhausted and that any
prolonged stay of the child in his/her own home will be
inimical to his/her welfare and interest.
Section 11. Case Study. No petition for adoption shall be set
for hearing unless a licensed social worker of the Department,
the social service office of the local government unit, or any
child-placing or child-caring agency has made a case study of
the adoptee, his/her biological parent(s), as well as the
adopter(s), and has submitted the report and
recommendations on the matter to the court hearing such
petition.
At the time of preparation of the adoptee's case study, the
concerned social worker shall confirm with the Civil Registry
the real identity and registered name of the adoptee. If the
birth of the adoptee was not registered with the Civil Registry,
it shall be the responsibility of the concerned social worker to
ensure that the adoptee is registered.
The case study on the adoptee shall establish that he/she is
legally available for adoption and that the documents to
support this fact are valid and authentic. Further, the case
study of the adopter(s) shall ascertain his/her genuine
intentions and that the adoption is in the best interest of the
child.
The Department shall intervene on behalf of the adoptee if it
finds, after the conduct of the case studies, that the petition
should be denied. The case studies and other relevant
documents and records pertaining to the adoptee and the
adoption shall be preserved by the Department.
Section 12. Supervised Trial Custody. No petition for
adoption shall be finally granted until the adopter(s) has been
given by the court a supervised trial custody period for at
least six (6) months within which the parties are expected to
adjust psychologically and emotionally to each other and
establish a bonding relationship. During said period,
temporary parental authority shall be vested in the
adopter(s).
The court may motu proprio or upon motion of any party
reduce the trial period if it finds the same to be in the best
interest of the adoptee, stating the reasons for the reduction
of the period. However, for alien adopter(s), he/she must
complete the six (6)-month trial custody except for those
enumerated in Sec. 7 (b) (i) (ii) (iii).
If the child is below seven (7) years of age and is placed with
the prospective adopter(s) through a pre-adoption placement
authority issued by the Department, the prospective
adopter(s) shall enjoy all the benefits to which biological
parent(s) is entitled from the date the adoptee is placed with
the prospective adopter(s).
Section 13. Decree of Adoption. If, after the publication of
the order of hearing has been complied with, and no
opposition has been interposed to the petition, and after
consideration of the case studies, the qualifications of the
adopter(s), trial custody report and the evidence submitted,
the court is convinced that the petitioners are qualified to
adopt, and that the adoption would redound to the best
interest of the adoptee, a decree of adoption shall be entered
which shall be effective as of the date the original petition was
filed. This provision shall also apply in case the petitioner(s)
dies before the issuance of the decree of adoption to protect

the interest of the adoptee. The decree shall state the name
by which the child is to be known.
Section 14. Civil Registry Record. An amended certificate of
birth shall be issued by the Civil Registry, as required by
the Rules of Court, attesting to the fact that the adoptee is the
child of the adopter(s) by being registered with his/her
surname. The original certificate of birth shall be
stamped "cancelled" with the annotation of the issuance of an
amended birth certificate in its place and shall be sealed in
the civil registry records. The new birth certificate to be issued
to the adoptee shall not bear any notation that it is an
amended issue.
Section 15. Confidential Nature of Proceedings and Records.
All hearings in adoption cases shall be confidential and shall
not be open to the public. All records, books, and papers
relating to the adoption cases in the files of the court, the
Department, or any other agency or institution participating in
the adoption proceedings shall be kept strictly confidential.
If the court finds that the disclosure of the information to a
third person is necessary for purposes connected with or
arising out of the adoption and will be for the best interest of
the adoptee, the court may merit the necessary information
to be released, restricting the purposes for which it may be
used.
ARTICLE V
EFFECTS OF ADOPTION
Section 16. Parental Authority. Except in cases where the
biological parent is the spouse of the adopter, all legal ties
between the biological parent(s) and the adoptee shall be
severed and the same shall then be vested on the adopter(s).
Section 17. Legitimacy. The adoptee shall be considered the
legitimate son/daughter of the adopter(s) for all intents and
purposes and as such is entitled to all the rights and
obligations provided by law to legitimate sons/daughters born
to them without discrimination of any kind. To this end, the
adoptee is entitled to love, guidance, and support in keeping
with the means of the family.
Section 18. Succession. In legal and intestate succession,
the adopter(s) and the adoptee shall have reciprocal rights of
succession without distinction from legitimate filiation.
However, if the adoptee and his/her biological parent(s) had
left a will, the law on testamentary succession shall govern.
ARTICLE VI
RESCISSION OF ADOPTION
Section 19. Grounds for Rescission of Adoption. Upon
petition of the adoptee, with the assistance of the Department
if a minor or if over eighteen (18) years of age but is
incapacitated, as guardian/counsel, the adoption may be
rescinded on any of the following grounds committed by the
adopter(s): (a) repeated physical and verbal maltreatment by
the adopter(s) despite having undergone counseling; (b)
attempt on the life of the adoptee; (c) sexual assault or
violence; or (d) abandonment and failure to comply with
parental obligations.
Adoption, being in the best interest of the child, shall not be
subject to rescission by the adopter(s). However, the
adopter(s) may disinherit the adoptee for causes provided in
Article 919 of the Civil Code.
Section 20. Effects of Rescission. If the petition 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 minor or incapacitated. The

reciprocal rights and obligations of the adopter(s) and the


adoptee to each other shall be extinguished.
The court shall order the Civil Registrar to cancel the
amended certificate of birth of the adoptee and restore his/her
original birth certificate.
Succession rights shall revert to its status prior to adoption,
but only as of the date of judgment of judicial rescission.
Vested rights acquired prior to judicial rescission shall be
respected.
All the foregoing effects of rescission of adoption shall be
without prejudice to the penalties imposable under the Penal
Code if the criminal acts are properly proven.
ARTICLE VII
VIOLATIONS AND PENALTIES
Section 21. Violations and Penalties. (a) The penalty of
imprisonment ranging from six (6) years and one (1) day to
twelve (12) years and/or a fine not less than Fifty thousand
pesos (P50,000.00), but not more than Two hundred thousand
pesos (P200,000.00) at the discretion of the court shall be
imposed on any person who shall commit any of the following
acts:
(i) obtaining consent for an adoption through coercion, undue
influence, fraud, improper material inducement, or other
similar acts;
(ii) non-compliance with the procedures and safeguards
provided by the law for adoption; or
(iii) subjecting or exposing the child to be adopted to danger,
abuse, or exploitation.
(b) Any person who shall cause the fictitious registration of
the birth of a child under the name(s) of a person(s) who is
not his/her biological parent(s) shall be guilty of simulation of
birth, and shall be punished by prision mayor in its medium
period and a fine not exceeding Fifty thousand pesos
(P50,000.00).
Any physician or nurse or hospital personnel who, in violation
of his/her oath of office, shall cooperate in the execution of
the abovementioned crime shall suffer the penalties herein
prescribed and also the penalty of permanent disqualification.
Any person who shall violate established regulations relating
to the confidentiality and integrity of records, documents, and
communications of adoption applications, cases, and
processes shall suffer the penalty of imprisonment ranging
from one (1) year and one (1) day to two (2) years, and/or a
fine of not less than Five thousand pesos (P5,000.00) but not
more than Ten thousand pesos (P10,000.00), at the discretion
of the court.
A penalty lower by two (2) degrees than that prescribed for
the consummated offense under this Article shall be imposed
upon the principals of the attempt to commit any of the acts
herein enumerated. Acts punishable under this Article, when
committed by a syndicate or where it involves two (2) or more
children shall be considered as an offense constituting child
trafficking and shall merit the penalty of reclusion perpetua.
Acts punishable under this Article are deemed committed by a
syndicate if carried out by a group of three (3) or more
persons conspiring and/or confederating with one another in
carrying out any of the unlawful acts defined under this
Article. Penalties as are herein provided, shall be in addition to
any other penalties which may be imposed for the same acts
punishable under other laws, ordinances, executive orders,
and proclamations.

When the offender is an alien, he/she shall be deported


immediately after service of sentence and perpetually
excluded from entry to the country.
Any government official, employee or functionary who shall be
found guilty of violating any of the provisions of this Act, or
who shall conspire with private individuals shall, in addition to
the above-prescribed penalties, be penalized in accordance
with existing civil service laws, rules and
regulations: Provided, That upon the filing of a case, either
administrative or criminal, said government official, employee,
or functionary concerned shall automatically suffer suspension
until the resolution of the case.
Section 22. Rectification of Simulated Births. A person who
has, prior to the effectivity of this Act, simulated the birth of a
child shall not be punished for such act: Provided, That the
simulation of birth was made for the best interest of the child
and that he/she has been consistently considered and treated
by that person as his/her own son/daughter: Provided,
further, That the application for correction of the birth
registration and petition for adoption shall be filed within five
(5) years from the effectivity of this Act and completed
thereafter: Provided, finally, That such person complies with
the procedure as specified in Article IV of this Act and other
requirements as determined by the Department.
ARTICLE VIII
FINAL PROVISIONS
Section 23. Adoption Resource and Referral Office. There
shall be established an Adoption Resources and Referral Office
under the Department with the following functions: (a)
monitor the existence, number, and flow of children legally
available for adoption and prospective adopter(s) so as to
facilitate their matching; (b) maintain a nationwide
information and educational campaign on domestic adoption;
(c) keep records of adoption proceedings; (d) generate
resources to help child-caring and child-placing agencies and
foster homes maintain viability; and (e) do policy research in
collaboration with the Intercountry Adoption Board and other
concerned agencies. The office shall be manned by adoption
experts from the public and private sectors.
Section 24. Implementing Rules and Regulations. Within six
(6) months from the promulgation of this Act, the Department,
with the Council for the Welfare of Children, the Office of Civil
Registry General, the Department of Justice, Office of the
Solicitor General, and two (2) private individuals representing
child-placing and child-caring agencies shall formulate the
necessary guidelines to make the provisions of this Act
operative.
Section 25. Appropriations. Such sum as may be necessary
for the implementation of the provisions of this Act shall be
included in the General Appropriations Act of the year
following its enactment into law and thereafter.
Section 26. Repealing Clause. Any law, presidential decree
or issuance, executive order, letter of instruction,
administrative order, rule, or regulation contrary to, or
inconsistent with the provisions of this Act is hereby repealed,
modified, or amended accordingly.
Section 27. Separability Clause. If any provision of this Act is
held invalid or unconstitutional, the other provisions not
affected thereby shall remain valid and subsisting.
Section 28. Effectivity Clause. This Act shall take effect
fifteen (15) days following its complete publication in any
newspaper of general circulation or in the Official Gazette.
Approved: February 25, 1998

Republic of the Philippines


Congress of the Philippines
Metro Manila

under conditions not conducive to good health; or is made to


beg in the streets or public places; or when children are in
moral danger, or exposed to gambling, prostitution, and other
vices.

Fourteenth Congress
Second Regular Session

Begun and held in Metro Manila, on Monday, the twenty-eight


day of July, two thousand eight.
Republic Act No. 9523

March 12, 2009

AN ACT REQUIRING CERTIFICATION OF THE DEPARTMENT OF


SOCIAL WELFARE AND DEVELOPMENT (DSWD) TO DECLARE A
"CHILD LEGALLY AVAILABLE FOR ADOPTION" AS A
PREREQUISITE FOR ADOPTION PROCEEDINGS, AMENDING FOR
THIS PURPOSE CERTAIN PROVISIONS OF REPUBLIC ACT NO.
8552, OTHERWISE KNOWN AS THE DOMESTIC ADOPTION ACT
OF 1998, REPUBLIC ACT NO. 8043, OTHERWISE KNOWN AS
THE INTER-COUNTRY ADOPTION ACT OF 1995, PRESIDENTIAL
DECREE NO. 603, OTHERWISE KNOWN AS THE CHILD AND
YOUTH WELFARE CODE, AND FOR OTHER PURPOSES
Be it enacted by the Senate and House of Representatives of
the Philippines in Congress assembled::
Section 1. Declaration of Policy. It is hereby declared the
policy of the State that alternative protection and assistance
shall be afforded to every child who is abandoned,
surrendered, or neglected. In this regard, the State shall
extend such assistance in the most expeditious manner in the
interest of full emotional and social development of the
abandoned, surrendered, or neglected child.
It is hereby recognized that administrative processes under
the jurisdiction of the Department of Social Welfare and
Development for the declaration of a child legally available for
adoption of abandoned, surrendered, or neglected children
are the most expeditious proceedings for the best interest and
welfare of the child.
Section. 2. Definition of Terms. As used in this Act, the
following terms shall mean:
(1) Department of Social Welfare and Development (DSWD) is
the agency charged to implement the provisions of this Act
and shall have the sole authority to issue the certification
declaring a child legally available for adoption.
(2) Child refers to a person below eighteen (18) years of age
or a person over eighteen (18) years of age but is unable to
fully take care of him/herself or protect himself/herself from
abuse, neglect, cruelty, exploitation, or discrimination
because of physical or mental disability or condition.
(3) Abandoned Child refers to a child who has no proper
parental care or guardianship, or whose parent(s) have
deserted him/her for a period of at least three (3) continuous
months, which includes a founding.
(4) Neglected Child refers to a child whose basic needs have
been deliberately unattended or inadequately attended within
a period of three (3) continuous months. Neglect may occur in
two (2) ways:
(a) There is physical neglect when the child is malnourished,
ill-clad, and without proper shelter. A child is unattended when
left by himself/herself without proper provisions and/or
without proper supervision.
(b) There is emotional neglect when the child is maltreated,
raped, seduced, exploited, overworked, or made to work

(5) Child Legally Available for Adoption refers to a child in


whose favor a certification was issued by the DSWD that
he/she is legally available for adoption after the fact of
abandonment or neglect has been proven through the
submission of pertinent documents, or one who was
voluntarily committed by his/her parent(s) or legal guardian.
(6) Voluntarily Committed Child is one whose parent(s) or
legal guardian knowingly and willingly relinquished parental
authority to the DSWD or any duly accredited child-placement
or child-caring agency or institution.
(7) Child-caring agency or institution refers to a private nonprofit or government agency duly accredited by the DSWD
that provides twenty-four (24) hour residential care services
for abandoned, neglected, or voluntarily committed children.
(8) Child-placing agency or institution refers to a private nonprofit institution or government agency duly accredited by the
DWSD that receives and processes applicants to become
foster or adoptive parents and facilitate placement of children
eligible for foster care or adoption.
(9) Petitioner refers to the head or executive director of a
licensed or accredited child-caring or child-placing agency or
institution managed by the government, local government
unit, non-governmental organization, or provincial, city, or
municipal Social Welfare Development Officer who has actual
custody of the minor and who files a certification to declare
such child legally available for adoption, or, if the child is
under the custody of any other individual, the agency or
institution does so with the consent of the child's custodian.
(10) Secretary refers to the Secretary of the DSWD or his duly
authorized representative.
(11) Conspicuous Place shall refer to a place frequented by
the public, where by notice of the petition shall be posted for
information of any interested person.
(12) Social Case Study Report (SCSR) shall refer to a written
report of the result of an assessment conducted by a licensed
social worker as to the social-cultural economic condition,
psychosocial background, current functioning and facts of
abandonment or neglect of the child. The report shall also
state the efforts of social worker to locate the child's biological
parents/relatives.
Section 3. Petition. The petition shall be in the form of an
affidavit, subscribed and sworn to before any person
authorized by law to administer oaths. It shall contain facts
necessary to establish the merits of the petition and shall
state the circumstances surrounding the abandonment or
neglect of the child.
The petition shall be supported by the following documents:
(1) Social Case Study Report made by the DSWD, local
government unit, licensed or accredited child-caring or childplacing agency or institution charged with the custody of the
child;
(2) Proof that efforts were made to locate the parent(s) or any
known relatives of the child. The following shall be considered
sufficient:
(a) Written certification from a local or national radio or
television station that the case was aired on three (3) different
occasions;

(b) Publication in one (1) newspaper of general circulation;


(c) Police report or barangay certification from the locality
where the child was found or a certified copy of a tracing
report issued by the Philippine National Red Cross (PNRC),
National Headquarters (NHQ), Social Service Division, which
states that despite due diligence, the child's parents could not
be found; and
(d) Returned registered mail to the last known address of the
parent(s) or known relatives, if any.
(3) Birth certificate, if available; and
(4) Recent photograph of the child and photograph of the
child upon abandonment or admission to the agency or
institution.
Section 4. Procedure for the Filing of the Petition. The
petition shall be filed in the regional office of the DSWD where
the child was found or abandoned.
The Regional Director shall examine the petition and its
supporting documents, if sufficient in form and substance and
shall authorize the posting of the notice of the petition
conspicuous place for five (5) consecutive days in the locality
where the child was found.
The Regional Director shall act on the same and shall render a
recommendation not later than five (5) working days after the
completion of its posting. He/she shall transmit a copy of
his/her recommendation and records to the Office of the
Secretary within forty-eight (48) hours from the date of the
recommendation.
Section 5. Declaration of Availability for Adoption. Upon
finding merit in the petition, the Secretary shall issue a
certification declaring the child legally available for adoption
within seven (7) working days from receipt of the
recommendation.
Said certification, by itself shall be the sole basis for the
immediate issuance by the local civil registrar of a foundling
certificate. Within seven (7) working days, the local civil
registrar shall transmit the founding certificate to the National
Statistic Office (NSO).
Section 6. Appeal. The decision of the Secretary shall be
appealable to the Court of Appeals within five (5) days from
receipt of the decision by the petitioner, otherwise the same
shall be final and executory.
Section 7. Declaration of Availability for Adoption of
Involuntarily Committed Child and Voluntarily Committed
Child. The certificate declaring a child legally available for
adoption in case of an involuntarily committed child under
Article 141, paragraph 4(a) and Article 142 of Presidential
Decree No. 603 shall be issued by the DSWD within three (3)
months following such involuntary commitment.
In case of voluntary commitment as contemplated in Article
154 of Presidential Decree No. 603, the certification declaring
the child legally available for adoption shall be issued by the
Secretary within three (3) months following the filing of the
Deed of Voluntary Commitment, as signed by the parent(s)
with the DSWD.
Upon petition filed with the DSWD, the parent(s) or legal
guardian who voluntarily committed a child may recover legal
custody and parental authority over him/her from the agency
or institution to which such child was voluntarily committed
when it is shown to the satisfaction of the DSWD that the
parent(s) or legal guardian is in a position to adequately
provide for the needs of the child: Provided, That, the petition

for restoration is filed within (3) months after the signing of


the Deed of Voluntary Commitment.
Section 8. Certification. The certification that a child is
legally available for adoption shall be issued by the DSWD in
lieu of a judicial order, thus making the entire process
administrative in nature.
The certification, shall be, for all intents and purposes, the
primary evidence that the child is legally available in a
domestic adoption proceeding, as provided in Republic Act No.
8552 and in an inter-country adoption proceeding, as provided
in Republic Act No. 8043.
Section. 9. Implementing Rules and Regulations. The DSWD,
together with the Council for Welfare of Children, InterCountry Adoption Board, two (2) representatives from licensed
or accredited child-placing and child-caring agencies or
institution, National Statistics Office and Office of the Civil
Registrar, is hereby tasked to draft the implementing rules
and regulations of this Act within sixty (60) days following its
complete publication.
Upon effectivity of this Act and pending the completion of the
drafting of the implementing rules and regulations, petitions
for the issuance of a certification declaring a child legally
available for adoption may be filled with the regional office of
the DSWD where the child was found or abandoned.
Section 10. Penalty. The penalty of One hundred thousand
pesos (P100,000.00) to Two hundred thousand pesos
(P200,000.00) shall be imposed on any person, institution, or
agency who shall place a child for adoption without the
certification that the child is legally available for adoption
issued by the DSWD. Any agency or institution found violating
any provision of this Act shall have its license to operate
revoked without prejudice to the criminal prosecution of its
officers and employees.
Violation of any provision of this Act shall subject the
government official or employee concerned to appropriate
administrative, civil and/or criminal sanctions, including
suspension and/or dismissal from the government service and
forfeiture of benefits.
Section 11. Repealing Clause. Sections 2(c)(iii), 3(b), (e) and
8(a) of Republic Act No. 8552, Section 3(f) of Republic Act No.
8043, Chapter 1 of Title VII, and VIII of Presidential Decree No.
603 and any law, presidential decree, executive order, letter
of instruction, administrative order, rule, or regulation
contrary to or inconsistent with the provisions of this Act are
hereby reprealed, modified or amended accordingly.
Section 12. Separability Clause. If any provision of this Act is
held invalid or unconstitutional, the other provisions not
affected thereby shall remain valid and subsisting.
Section 13. Effectivity. This Act shall take effect fifteen (15)
days following its complete publication in two (2) newspapers
of general circulation or in the Official Gazette.
Approved,
It has been the policy of the Court to adhere to the liberal
concept, as stated in Malkinson v. Agrava, 28 that adoption
statutes, being humane and salutary, hold the interest and
welfare of the child to be of paramount consideration and are
designed to provide homes, parental care and education for
unfortunate, needy or orphaned children and give them the
protection of society and family in the person of the adopter
as well as to allow childless couples or persons to experience
the joys of parenthood and give them legally a child in the
person of the adopted for the manifestation of their natural
parental instincts. Every reasonable intendment should thus

be sustained to promote and fulfill these noble and


compassionate objectives of the law. 29
However, in Cang v. Court of Appeals, 30 the Court also ruled
that the liberality with which this Court treats matters leading
to adoption insofar as it carries out the beneficent purposes of
the law to ensure the rights and privileges of the adopted
child arising therefrom, ever mindful that the paramount
consideration is the overall benefit and interest of the adopted
child, should be understood in its proper context and
perspective. The Court's position should not be misconstrued
or misinterpreted as to extend to inferences beyond the
contemplation of law and jurisprudence. Thus, the discretion
to approve adoption proceedings is not to be anchored solely
on best interests of the child but likewise, with due regard to
the natural rights of the parents over the child. 31
Section 9 of Republic Act No. 8552, otherwise known as the
Domestic Adoption Act of 1998, provides:
Sec. 9. Whose Consent is Necessary to the Adoption. After
being properly counseled and informed of his/her right to give
or withhold his/her approval of the adoption, the written
consent of the following to the adoption is hereby required:
(a) The adoptee, if ten (10) years of age or over;
(b) The biological parent(s) of the child, if known, or the legal
guardian, or the proper government instrumentality which has
legal custody of the child; aSTHDc
(c) The legitimate and adopted sons/daughters, ten (10) years
of age or over, of the adopter(s) and adoptee, if any;
(d) The illegitimate sons/daughters, ten (10) years of age or
over, of the adopter, if living with said adopter and the latter's
souse, if any;
(e) The spouse, if any, of the person adopting or to be
adopted.
The general requirement of consent and notice to the natural
parents is intended to protect the natural parental relationship
from unwarranted interference by interlopers, and to insure
the opportunity to safeguard the best interests of the child in
the manner of the proposed adoption. 32
Clearly, the written consent of the biological parents is
indispensable for the validity of a decree of adoption. Indeed,
the natural right of a parent to his child requires that his
consent must be obtained before his parental rights and
duties may be terminated and re-established in adoptive
parents. In this case, petitioner failed to submit the written
consent of Amelia Ramos to the adoption.
We note that in her Report, Pagbilao declared that she was
able to interview Amelia Ramos who arrived in the Philippines
with her son, John Mario in May 2002. If said Amelia Ramos
was in the Philippines and Pagbilao was able to interview her,
it is incredible that the latter would not require Amelia Ramos
to execute a Written Consent to the adoption of her minor
children. Neither did the petitioner bother to present Amelia
Ramos as witness in support of the petition.
Petitioner, nonetheless, argues that the written consent of the
biological mother is no longer necessary because when
Amelia's husband died in 1990, she left for Italy and never
came back. The children were then left to the guidance and
care of their paternal grandmother. It is the paternal relatives,
including petitioner, who provided for the children's financial
needs. Hence, Amelia, the biological mother, had effectively
abandoned the children. Petitioner further contends that it
was by twist of fate that after 12 years, when the petition for
adoption was pending with the RTC that Amelia and her child

by her second marriage were on vacation in the Philippines.


Pagbilao, the DSWD social worker, was able to meet her, and
during the meeting, Amelia intimated to the social worker that
she conformed to the adoption of her three children by the
petitioner.
Petitioner's contention must be rejected. When she filed her
petition with the trial court, Rep. Act No. 8552 was already in
effect. Section 9 thereof provides that if the written consent of
the biological parents cannot be obtained, the written consent
of the legal guardian of the minors will suffice. If, as claimed
by petitioner, that the biological mother of the minors had
indeed abandoned them, she should, thus have adduced the
written consent of their legal guardian.
Ordinarily, abandonment by a parent to justify the adoption of
his child without his consent, is a conduct which evinces a
settled purpose to forego all parental duties. 33The term
means neglect and refusal to perform the filial and legal
obligations of love and support. If a parent withholds
presence, love, care, the opportunity to display filial affection,
and neglects to lend support and maintenance, the parent, in
effect, abandons the child. 34
||| (Landingin v. Republic, G.R. No. 164948, [June 27, 2006],
526 PHIL 365-384)

3. ID.; ID.; A PERSON HAS NO VESTED RIGHT AGAINST


STATUTORY PRIVILEGES AND A RIGHT OF ACTION GIVEN BY
STATUTE MAY BE TAKEN AWAY AT ANYTIME BEFORE IT HAS
BEEN EXERCISED. Even before the passage of the statute,
an action to set aside the adoption is subject to the five-year
bar rule under Rule 100 of the Rules of Court and that the
adopter would lose the right to revoke the adoption decree
after the lapse of that period. The exercise of the right within
a prescriptive period is a condition that could not fulfill the
requirements of a vested right entitled to protection. It must
also be acknowledged that a person has no vested right in
statutory privileges. While adoption has often been referred to
in the context of a "right," the privilege to adopt is itself not
naturally innate or fundamental but rather a right merely
created by statute. It is a privilege that is governed by the
state's determination on what it may deem to be for the best
interest and welfare of the child. Matters relating to adoption,
including the withdrawal of the right of an adopter to nullify
the adoption decree, are subject to regulation by the State.
Concomitantly, aright of action given by statute may be taken
away at anytime before it has been exercised.
4. ID.; ID.; WHILE R.A. NO. 8552 HAS UNQUALIFIEDLY
WITHDRAWN FROM AN ADOPTER A CONSEQUENTIAL RIGHT
TO RESCIND THE ADOPTION DECREE EVEN IN CASES WHERE
THE ADOPTION MIGHT CLEARLY TURN OUT TO BE
UNDESIRABLE, IT REMAINS, NEVERTHELESS, THE BOUNDEN
DUTY OF THE COURT TO APPLY THE LAW;DURA LEX SED
LEX WOULD BE THE HACKNEYED TRUISM THAT THOSE
CAUGHT IN THE LAW HAVE TO LIVE WITH IT. While R.A. No.
8552 has unqualifiedly withdrawn from an adopter a
consequential right to rescind the adoption decree even in
cases where the adoption might clearly turn out to be
undesirable, it remains, nevertheless, the bounden duty of the
Court to apply the law. Dura lex sed lex would be the
hackneyed truism that those caught in the law have to live
with. It is still noteworthy, however, that an adopter, while
barred from severing the legal ties of adoption, can always for
valid reasons cause the forfeiture of certain benefits otherwise
accruing to an undeserving child. For instance, upon the
grounds recognized by law, an adopter may deny to an
adopted child his legitime and, by a will and testament, may
freely exclude him from having a share in the disposable
portion of his estate.

||| (Lahom v. Sibulo, G.R. No. 143989, [July 14, 2003], 453
PHIL 987-999)

1. ADOPTION: ELDER SISTER ADOPTING A YOUNGER


BROTHER. An elder sister may adopt a younger brother.
There is no law that prohibits relatives, by blood or by affinity,
from adopting one another. Article 335 of the Civil Code
enumerates those persons who may not adopt, and
petitioners-appellants are not among those prohibited from
adopting. Again Article 339 of the same code names those
who cannot be adopted, and the minor child whose adoption
is under consideration is not one of those excluded by law. On
the other hand, Art. 338 of the same code allows the adoption
of a natural child by the natural father or mother, of other
illegitimate children by their father or mother, and of a stepchild by the step-father or step-mother. The last article
removes all doubts that adoption is not prohibited even in
cases where there already exist a relationship of parent and
child between them by nature.
2. ID.; POLICY OF THE LAW. The interest and welfare of the
child to be adopted should be of paramount consideration.
Adoption statutes, being humane and salutary, and designed
to provide homes, care and education for unfortunate
children, should be construed so as to encourage the adoption
of such children by person who can properly rear and educate
them.
3. ID.; ADOPTION OF YOUNGER BROTHER BY ELDER SISTER;
OBJECTION THAT ADOPTION WILL RESULT IN DUAL
RELATIONSHIP SHOULD NOT PREVENT ADOPTION. With
respect to the objection that the adoption by the elder sister
of a younger brother would result in a dual relationship
between the parties, such that the adopted brother will also
be the son of the adopting elder sister, that fact alone should
not prevent adoption. One is by nature, while the other is by
fiction of law. The relationship established by the adoption is
limited to the adopting parents and does not extend to their
other relatives, except as expressly provided by law. Thus, the
adopted child cannot be considered as a relative of the
ascendants and collaterals of the adopting parents, nor of the
legitimate children which they may have after the adoption
except that the law imposes certain impediments to marriage
by reason of adoption. Neither are children of the adopted
considered as descendants of the adopter (Tolentino, Civil
Code, Vol. I, 1960 Ed., p. 652, citing 1 Oyuelos 284; Perez,
Gonzales and Castan; 4-11 Enneccerus, Kipp & Wolff 177;
Munoz, p. 104).
||| (In re: Villa y Mendoza v. Republic, G.R. No. L-22523,
[September 29, 1967], 128 PHIL 374-380)

1. INSANE PERSONS; DISCHARGE FROM CUSTODY;


RESPECTIVE POWERS OF TRIAL JUDGE AND DIRECTOR OF
HEALTH; PENAL CODE, ARTICLE 8, AND ADMINISTRATIVE
CODE, SECTION 1048, CONTRASTED AND CONSTRUED. The
Director of Health is without power to release without proper
judicial authority any person confined by order of the court in
an insane asylum pursuant to the provisions or article 8 of the
Penal Code.
2. ID.; ID.; ID.; ID. A Judge of First Instance, who has in
effect acquitted a man charged with murder on the plea of
insanity, and who has ordered the confinement of the insane
person in an asylum, is without power to permit the insane
person to leave the asylum without obtaining the opinion of
the Director of Health as to whether or not the person is
temporarily or permanently cured, or may be released without
danger.

3. ID.; ID.; ID.; ID. Article 8 of the Penal Code has not been
impliedly repealed by section 1048 of the Administrative
Code.
||| (Chin Ah Foo v. Concepcion, G.R. No. 33281, [March 31,
1930], 54 PHIL 775-781)
1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES;
INCONSISTENCIES RELATING TO MINOR AND
INCONSEQUENTIAL DETAILS DID NOT IMPAIR COMPLAINT'S
CREDIBILITY. Appellant first assails the credibility of
complainant as well as of her mother whose testimonies he
contends are contradictory. It is claimed by appellant that the
testimony of complainant on direct examination that she
immediately went home after the rape incident, is at variance
with her testimony on cross examination to the effect that she
has stayed in the house of appellant until the following day.
Complainant, in saying that she left the house of appellant by
herself, is also alleged to have contradicted her mother who
stated that she (the mother) went to the store in the evening
of 17 March 1979 and brought Estelita home. The apparently
inconsistent statements made by complainant were clarified
by her on cross examination. In any case, the inconsistencies
related to minor and inconsequential details which do not
touch upon the manner in which the crime had been
committed and therefore did not in any way impair the
credibility of the complainant.||| (People v. Rafanan, Jr., G.R.
No. 54135, [November 21, 1991])

More recently, we had occasion to rule squarely on whether or


not a temporary release from detention renders the petition
for writ of habeas corpus moot and academic. As in this case
of Moncupa, the petitioners in Toyoto, et al. v. Hon. Fidel
Ramos, et al., G.R. No. 69270, October 15, 1985, were
temporarily released from detention. The respondents filed a
motion to dismiss the petition for habeas corpus on the
ground that the petitioners had been temporarily released and
their case had, therefore, become moot and academic. The
petitioners insisted, however, that their case may be
considered moot and academic only "if their release would be
permanent." In ruling for the petitioners, we said: LLjur
"Ordinarily, a petition for habeas corpus becomes moot and
academic when the restraint on the liberty of the petitioners is
lifted either temporarily or permanently. We have so held in a
number of cases. But the instant case presents a different
situation. The question to be resolved is whether the State
can reserve the power to re-arrest a person for an offense
after a court of competent jurisdiction has absolved him of the
offense. An affirmative answer is the one suggested by the
respondents because the release of the petitioners being
merely 'temporary' it follows that they can be re-arrested at
anytime despite their acquittal by a court of competent
jurisdiction. We hold that such a reservation is repugnant to
the government of laws and not of men principle. Under this
principle the moment a person is acquitted on a criminal
charge he can no longer be detained or re-arrested for the
same offense. This concept is so basic and elementary that it
needs no elaboration."
In effect the principle is clear. A release that renders a petition
for a writ of habeas corpus moot and academic must be one
which is free from involuntary restraints. Where a person
continues to be unlawfully denied one or more of his
constitutional freedoms, where there is present a denial of
due process, where the restraints are not merely involuntary
but appear to be unnecessary, and where a deprivation of
freedom originally valid has, in the light of subsequent
developments, become arbitrary, the person concerned or
those applying in his behalf may still avail themselves of the
privilege of the writ.

The respondents have failed to show why the writ may not
issue and why the restraints on the petitioner's freedom of
movement should not be lifted.
||| (Moncupa v. Enrile, G.R. No. L-63345, [January 30, 1986],
225 PHIL 191-197)

Section 4, Rule 102 of the Rules of Court provides when the


writ is not allowed:
SEC. 4. When writ not allowed or discharge authorized. If it
appears that the person alleged to be restrained of his liberty
is in the custody of an officer under process issued by a court
or judge or by virtue of a judgment or order of a court of
record, and that the court or judge had jurisdiction to issue
the process, render the judgment, or make the order, the writ
shall not be allowed; or if the jurisdiction appears after the
writ is allowed, the person shall not be discharged by reason
of any informality or defect in the process, judgment, or
order. Nor shall anything in this rule be held to authorize the
discharge of a person charged with or convicted of an offense
in the Philippines, or of a person suffering imprisonment under
lawful judgment. 6
In this case, Kunting's detention by the PNP-IG was under
process issued by the RTC. He was arrested by the PNP by
virtue of the alias order of arrest issued by Judge Danilo M.
Bucoy, RTC, Branch 2, Isabela City, Basilan. His temporary
detention at PNP-IG, Camp Crame, Quezon City, was thus
authorized by the trial court. AHCcET
Moreover, Kunting was charged with four counts of Kidnapping
for Ransom and Serious Illegal Detention in Criminal Case Nos.
3608-1164, 3537-1129, 3674-1187, and 3611-1165. In
accordance with the last sentence of Section 4 above, the writ
cannot be issued and Kunting cannot be discharged since he
has been charged with a criminal offense. Bernarte v. Court of
Appeals 7 holds that "once the person detained is duly
charged in court, he may no longer question his detention by
a petition for the issuance of a writ of habeas corpus."
||| (In re: Kunting, G.R. No. 167193, [April 19, 2006], 521 PHIL
711-717)

Habeas corpus may be resorted to in cases where rightful


custody is withheld from a person entitled thereto. 9 Under
Article 211 10 of the Family Code, respondent Loran and
petitioner Marie Antonette have joint parental authority over
their son and consequently joint custody. Further, although
the couple is separated de facto, the issue of custody has yet
to be adjudicated by the court. In the absence of a judicial
grant of custody to one parent, both parents are still entitled
to the custody of their child. In the present case, private
respondent's cause of action is the deprivation of his right to
see his child as alleged in his petition. 11 Hence, the remedy
ofhabeas corpus is available to him.
In a petition for habeas corpus, the child's welfare is the
supreme consideration. The Child and Youth Welfare
Code 12 unequivocally provides that in all questions regarding
the care and custody, among others, of the child, his welfare
shall be the paramount consideration. 13
Again, it bears stressing that the order did not grant custody
of the minor to any of the parties but merely directed
petitioners to produce the minor in court and explain why
private respondent is prevented from seeing his child. This is
in line with the directive in Section 9 14 of A.M. 03-04-04-

SC 15 that within fifteen days after the filing of the answer or


the expiration of the period to file answer, the court shall
issue an order requiring the respondent (herein petitioners) to
present the minor before the court. This was exactly what the
court did. CHDTIS
Moreover, Article 213 of the Family Code deals with the
judicial adjudication of custody and serves as a guideline for
the proper award of custody by the court. Petitioners can raise
it as a counter argument for private respondent's petition for
custody. But it is not a basis for preventing the father to see
his own child. Nothing in the said provision disallows a father
from seeing or visiting his child under seven years of age.
||| (Salientes v. Abanilla, G.R. No. 162734, [August 29, 2006],
531 PHIL 521-528)

I.IN G.R. NO. 183711 (HABEAS CORPUS PETITION, CA-G.R. SP


No. 99839)
a.ISSUE a Writ of Habeas Corpus anew, returnable to the
Presiding Justice of the Court of Appeals who shall
immediately refer the writ to the same Division that decided
the habeas corpus petition;
b.ORDER Lt. Harry A. Baliaga, Jr. impleaded in CA-G.R. SP No.
99839 and G.R. No. 183711, and REQUIRE him, together with
the incumbent Chief of Staff, Armed Forces of the Philippines;
the incumbent Commanding General, Philippine Army; and
the Commanding Officer of the 56th IB, 7th Infantry Division,
Philippine Army at the time of the disappearance of Jonas
Joseph T. Burgos, Lt. Col. Melquiades Feliciano, to produce the
person of Jonas Joseph T. Burgos under the terms the Court of
Appeals shall prescribe, and to show cause why Jonas Joseph
T. Burgos should not be released from detention;
c.REFER back the petition for habeas corpus to the same
Division of the Court of Appeals which shall continue to hear
this case after the required Returns shall have been filed and
render a new decision within thirty (30) days after the case is
submitted for decision; and aAHTDS
d.ORDER the Chief of Staff of the Armed Forces of the
Philippines and the Commanding General of the Philippine
Army to be impleaded as parties, separate from the original
respondents impleaded in the petition, and the dropping or
deletion of President Gloria Macapagal-Arroyo as partyrespondent.
II.IN G.R. NO. 183712 (CONTEMPT OF COURT CHARGE, CA-G.R.
SP No. 100230)
e.AFFIRM the dismissal of the petitioner's petition for
Contempt in CA-G.R. SP No. 100230, without prejudice to the
re-filing of the contempt charge as may be warranted by the
results of the subsequent CHR investigation this Court has
ordered; and
f.ORDER the dropping or deletion of former President Gloria
Macapagal-Arroyo as party-respondent, in light of the
unconditional dismissal of the contempt charge against her.
III.IN G.R. NO. 183713 (WRIT OF AMPARO PETITION, CA-G.R. SP
No. 00008-WA)
g.ORDER Lt. Harry A. Baliaga, Jr., impleaded in CA-G.R. SP No.
00008-WA and G.R. No. 183713, without prejudice to similar
directives we may issue with respect to others whose
identities and participation may be disclosed in future
investigations and proceedings; ACDTcE

h.DIRECT Lt. Harry A. Baliaga, Jr., and the


present Amparo respondents to file their Comments on the
CHR report with the Court of Appeals, within a non-extendible
period of fifteen (15) days from receipt of this Resolution.
i.REQUIRE General Roa of the Office of the Judge Advocate
General, AFP; the Deputy Chief of Staff for Personnel, JI,
AFP, at the time of our June 22, 2010 Resolution; and then
Chief of Staff, AFP, Gen. Ricardo David, (a) to show cause and
explain to this Court, within a non-extendible period of fifteen
(15) days from receipt of this Resolution, why they should not
be held in contempt of this Court for their defiance of our June
22, 2010 Resolution; and (b) to submit to this Court, within a
non-extendible period of fifteen (15) days from receipt of this
Resolution, a copy of the documents requested by the CHR,
particularly:
1)The profile and Summary of Information and pictures of
T/Sgt. Jason Roxas (Philippine Army); Cpl. Maria Joana
Francisco (Philippine Air Force); M/Sgt. Aron Arroyo (Philippine
Air Force), an alias T.L. all reportedly assigned with Military
Intelligence Group 15 of Intelligence Service of the Armed
Forces of the Philippines and 2Lt. Fernando, a lady officer
involved in the counter-insurgency operations of the 56th IB in
2006 to 2007;
2)Copies of the records of the 2007 ERAP 5 incident in
Kamuning, Quezon City and the complete list of the
intelligence operatives involved in that said covert military
operation, including their respective Summary of Information
and individual pictures; and
3)Complete list of the officers, women and men assigned at
the 56th and 69th Infantry Battalion and the 7th Infantry
Division from January 1, 2004 to June 30, 2007 with their
respective profiles, Summary of Information and pictures;
including the list of captured rebels and rebels who
surrendered to the said camps and their corresponding
pictures and copies of their Tactical Interrogation Reports and
the cases filed against them, if any. AHDaET
These documents shall be released exclusively to this Court
for our examination to determine their relevance to the
present case and the advisability of their public disclosure.
j.ORDER the Chief of Staff of the Armed Forces of the
Philippines and the Commanding General of the Philippine
Army to be impleaded as parties, in representation of their
respective organizations, separately from the original
respondents impleaded in the petition; and the dropping of
President Gloria Macapagal-Arroyo as party-respondent;
k.REFER witnesses Jeffrey T. Cabintoy and Elsa B. Agasang to
the Department of Justice for admission to the Witness
Protection Security and Benefit Program, subject to the
requirements of Republic Act No. 6981; and
l.NOTE the criminal complaint filed by the petitioner with the
DOJ which the latter may investigate and act upon on its own
pursuant to Section 21 of the Rule on the Writ of Amparo.
||| (Burgos v. Macapagal-Arroyo, G.R. No. 183711, 183712,
183713, [July 5, 2011], 668 PHIL 699-726)

Hence, while the jurisdictional requirements of Rule 103


(which governs petitions for change of name) were not
complied with, observance of the provisions of Rule 108
suffices to effect the correction sought for.
More importantly, Carlito's official transcript of record from the
Urious College in Butuan City, 31 certificate of eligibility from
the Civil Service Commission, 32 and voter registration

record 33 satisfactorily show that he has been known by his


first name only. No prejudice is thus likely to arise from the
dropping of the second name.

The correction of the mother's citizenship from Chinese to


Filipino as appearing in Carlito's birth record was also proper.
Of note is the fact that during the cross examination by the
city prosecutor of Epifania, he did not deem fit to question her
citizenship. Such failure to oppose the correction prayed for,
which certainly was not respondents' fault, does not in any
way change the adversarial nature of the proceedings. SEHTIc
Also significant to note is that the birth certificates of Carlito's
siblings uniformly stated the citizenship of Epifania as
"Filipino". To disallow the correction in Carlito's birth record of
his mother's citizenship would perpetuate an inconsistency in
the natal circumstances of the siblings who are
unquestionably born of the same mother and father.
Outside the ambit of substantial corrections, of course, is the
correction of the name of Carlito's wife from "Maribel" to
"Marivel". The mistake is clearly clerical or typographical,
which is not only visible to the eyes, but is also obvious to the
understanding 34 considering that the name reflected in the
marriage certificate of Carlito and his wife is "Marivel".
Apropos is Yu v. Republic 35 which held that changing the
appellant's Christian name of "Sincio" to "Sencio" amounts
merely to the righting of a clerical error. The change of name
from Beatriz Labayo/Beatriz Labayu to Emperatriz Labayo was
also held to be a mere innocuous alteration, which can be
granted through a summary proceeding. 36 The same ruling
holds true with respect to the correction in Carlito's marriage
certificate of his father's name from "John Kho" to "Juan Kho".
Except in said marriage certificate, the name "Juan Kho" was
uniformly entered in the birth certificates of Carlito and of his
siblings. 37
||| (Republic v. Kho, G.R. No. 170340, [June 29, 2007], 553
PHIL 161-177)

Moreover, it is noteworthy that the cases cited by


petitioner 22 in support of its position deal with cancellation
or correction of entries in the civil registry, a proceeding
separate and distinct from the special proceedings for change
of name. Those cases deal with the application and
interpretation of Rule 108 of the Rules of Court while this case
was correctly filed under Rule 103. Thus, the cases cited by
petitioner are irrelevant and have no bearing on respondent's
case. While the OSG is correct in its stance that the
proceedings for change of name should be adversarial, the
OSG cannot void the proceedings in the trial court on account
of its own failure to participate therein. As the CA correctly
ruled:

The OSG is correct in stating that a petition for change of


name must be heard in an adversarial proceeding. Unlike
petitions for the cancellation or correction of clerical errors in
entries in the civil registry under Rule 108 of the Rules of
Court, a petition for change of name under Rule 103 cannot
be decided through a summary proceeding. There is no doubt
that this petition does not fall under Rule 108 for it is not
alleged that the entry in the civil registry suffers from clerical
or typographical errors. The relief sought clearly goes beyond
correcting erroneous entries in the civil registry, although by
granting the petition, the result is the same in that a
corresponding change in the entry is also required to reflect
the change in name. In this regard, [appellee] Capote

complied with the requirement for an adversarial proceeding


by posting in a newspaper of general circulation notice of the
filing of the petition. The lower court also furnished the OSG a
copy thereof. Despite the notice, no one came forward to
oppose the petition including the OSG. The fact that no one
opposed the petition did not deprive the court of its
jurisdiction to hear the same nor does it make the proceeding
less adversarial in nature. The lower court is still expected to
exercise its judgment to determine whether the petition is
meritorious or not and not merely accept as true the
arguments propounded. Considering that the OSG neither
opposed the petition nor the motion to present its evidence ex
parte when it had the opportunity to do so, it cannot now
complain that the proceedings in the lower court were not
adversarial enough. 23 (emphasis supplied) cDCaTS
A proceeding is adversarial where the party seeking relief has
given legal warning to the other party and afforded the latter
an opportunity to contest it. 24 Respondent gave notice of the
petition through publication as required by the rules. 25 With
this, all interested parties were deemed notified and the
whole world considered bound by the judgment therein. In
addition, the trial court gave due notice to the OSG by serving
a copy of the petition on it. Thus, all the requirements to make
a proceeding adversarial were satisfied when all interested
parties, including petitioner as represented by the OSG, were
afforded the opportunity to contest the petition.
WHEREFORE, the petition is hereby DENIED and the January
13, 2003 decision of the Court of Appeals in CA-G.R. CV No.
66128 AFFIRMED.
SO ORDERED.
||| (Republic v. Capote, G.R. No. 157043, [February 2, 2007],
543 PHIL 72-81)

In the case at bar, the only reason advanced by petitioner for


the dropping his middle name is convenience. However, 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.
In addition, petitioner is only a minor. Considering the
nebulous foundation on which his petition for change of name
is based, it is best that the matter of change of his name be
left to his judgment and discretion when he reaches the age of
majority. 26 As he is of tender age, he may not yet understand
and appreciate the value of the change of his name and
granting of the same at this point may just prejudice him in
his rights under our laws.
||| (Julian Lin Wang v. Cebu City Civil Registrar, G.R. No.
159966, [March 30, 2005], 494 PHIL 149-163)

1. REMEDIAL LAW; SPECIAL PROCEEDINGS; CANCELLATION OR


CORRECTION OF ENTRIES IN CIVIL REGISTRY; PROPER TO
ESTABLISH THAT PETITIONERS ARE NOT THE CHILDREN OF
PRIVATE RESPONDENTS' MOTHER. It is precisely the
province of a special proceeding such as the one outlined
under Rule 108 of the Revised Rules of Court to establish the
status or right of a party, or a particular fact. The petitions
filed by private respondents for the correction of entries in the
petitioners' records of birth were intended to establish that for
physical and/or biological reasons it was impossible for Keh
Shiok Cheng to have conceived and given birth to the
petitioners as shown in their birth records. Contrary to

petitioners' contention that the petitions before the lower


courts were actually actions to impugn legitimacy, the prayer
therein is not to declare that petitioners are illegitimate
children of Keh Shiok Cheng, but to establish that the former
are not the latter's children. There is nothing to impugn as
there is no blood relation at all between Keh Shiok Cheng and
petitioners.
2. ID.; ID.; ID.; SUBSTANTIAL ERRORS MAY BE CORRECTED
PROVIDED THE PARTIES AGGRIEVED AVAIL OF THE
APPROPRIATE ADVERSARY PROCEEDING. Further
sanctioning private respondents' resort to Rule 108, the Court
of Appeals adverted to our ruling in the leading case
of Republic vs. Valencia where we affirmed the decision of
Branch XI of the then Court of First Instance (CFI) of Cebu City
ordering the correction in the nationality and civil status of
petitioner's minor children as stated in their records of birth
from "Chinese" to "Filipino," and "legitimate" to "illegitimate,"
respectively. Although recognizing that the changes or
corrections sought to be effected are not mere clerical errors
of a harmless or innocuous nature, this Court, sitting en banc,
held therein that even substantial errors in a civil register may
be corrected and the true facts established provided the
parties aggrieved by the error avail themselves of
the appropriate adversary proceeding. In the said case, we
also laid down the rule that a proceeding for correction and/or
cancellation of entries in the civil register under Rule 108
ceases to be summary in nature and takes on the
characteristics of an appropriate adversary proceeding when
all the procedural requirements under Rule 108 are complied
with.
3. ID.; ID.; ID.; LABAYO-ROWE VS. REPUBLIC (168 SCRA 294)
DISMISSED FOR FAILURE TO IMPLEAD ALL INDISPENSABLE
PARTIES; DOES NOT EXCLUDE RECOURSE TO RULE 108 OF
THE REVISED RULES OF COURT. At the outset, it should be
pointed out that in the cited case of Labayo-Rowe vs.
Republic, the reason we declared null and void the portion of
the lower court's order directing the change of Labayo-Rowe's
civil status and the filiation of one of her children as appearing
in the latter's record of birth, is not because Rule 108 was
inappropriate to effect such changes, but because LabayoRowe's petition before the lower court failed to implead all
indispensable parties to the case. Far from petitioners' theory,
this Court's ruling in Labayo-Rowe vs. Republic does not
exclude recourse to Rule 108 of the Revised Rules of Court to
effect substantial changes or corrections in entries of the civil
register. The only requisite is that the proceedings under Rule
108 be an appropriate adversary proceeding as contradistinguished from a summary proceeding.
5. ID.; ID.; ID.; APPROPRIATE ADVERSARY PROCEEDING TO
EFFECT SUBSTANTIAL CORRECTIONS AND CHANGES WHEN
ALL PROCEDURAL REQUIREMENTS ARE COMPLIED WITH.
Thus, we find no reason to depart from our ruling in Republic
vs. Valencia, that Rule 108, when all the procedural
requirements thereunder are followed, is the appropriate
adversary proceeding to effect substantial corrections and
changes in entries of the civil register.
6. ID.; ID.; ID.; R.A. 9048; CLERICAL OR TYPOGRAPHICAL
ERRORS, REMOVED FROM THE AMBIT OF RULE 108.
Republic Act No. 9048 which was passed by Congress on
February 8, 2001 substantially amended Article 412 of the
New Civil Code. The above law speaks clearly. Clerical or
typographical errors in entries of the civil register are now to
be corrected and changed without need of a judicial order and
by the city or municipal civil registrar or consul general. The
obvious effect is to remove from the ambit of Rule 108 the
correction or changing of such errors in entries of the civil
register. Hence, what is left for the scope of operation of Rule

108 are substantial changes and corrections in entries of the


civil register.

||| (Lee v. Court of Appeals, G.R. No. 118387, [October 11,


2001], 419 PHIL 392-421)

A PERSON'S FIRST NAME


CANNOT BE CHANGED ON THE
GROUND OF SEX REASSIGNMENT
Petitioner invoked his sex reassignment as the ground for his
petition for change of name and sex. As found by the trial
court:
Petitioner filed the present petition not to evade any law or
judgment or any infraction thereof or for any unlawful motive
but solely for the purpose of making his birth records
compatible with his present sex. (emphasis supplied)
Petitioner believes that after having acquired the physical
features of a female, he became entitled to the civil registry
changes sought. We disagree.
The State has an interest in the names borne by individuals
and entities for purposes of identification. 11 A change of
name is a privilege, not a right. 12 Petitions for change of
name are controlled by statutes. 13 In this connection, Article
376 of the Civil Code provides:
ART. 376. No person can change his name or surname without
judicial authority.
This Civil Code provision was amended by RA 9048 (Clerical
Error Law). In particular, Section 1 of RA 9048 provides:
SECTION 1. Authority to Correct Clerical or Typographical
Error and Change of First Name or Nickname. No entry in a
civil register shall be changed or corrected without a judicial
order, except for clerical or typographical errors and change
of first name or nickname which can be corrected or changed
by the concerned city or municipal civil registrar or consul
general in accordance with the provisions of this Act and its
implementing rules and regulations.
RA 9048 now governs the change of first name. 14 It vests the
power and authority to entertain petitions for change of first
name to the city or municipal civil registrar or consul general
concerned. Under the law, therefore, jurisdiction over
applications for change of first name is now primarily lodged
with the aforementioned administrative officers. The intent
and effect of the law is to exclude the change of first name
from the coverage of Rules 103 (Change of Name) and 108
(Cancellation or Correction of Entries in the Civil Registry) of
the Rules of Court, until and unless an administrative petition
for change of name is first filed and subsequently
denied. 15 It likewise lays down the corresponding
venue, 16 form 17 and procedure. In sum, the remedy and the
proceedings regulating change of first name are primarily
administrative in nature, not judicial. AcDaEH
RA 9048 likewise provides the grounds for which change of
first name may be allowed:
SECTION 4. Grounds for Change of First Name or Nickname.
The petition for change of first name or nickname may be
allowed in any of the following cases:
(1) The petitioner finds the first name or nickname to be
ridiculous, tainted with dishonor or extremely difficult to write
or pronounce;

(2) The new first name or nickname has been habitually and
continuously used by the petitioner and he has been publicly
known by that first name or nickname in the community; or
(3) The change will avoid confusion.
Petitioner's basis in praying for the change of his first name
was his sex reassignment. He intended to make his first name
compatible with the sex he thought he transformed himself
into through surgery. However, a change of name does not
alter one's legal capacity or civil status. 18 RA 9048 does not
sanction a change of first name on the ground of sex
reassignment. Rather than avoiding confusion, changing
petitioner's first name for his declared purpose may only
create grave complications in the civil registry and the public
interest.
Before a person can legally change his given name, he must
present proper or reasonable cause or any compelling reason
justifying such change. 19 In addition, he must show that he
will be prejudiced by the use of his true and official
name. 20 In this case, he failed to show, or even allege, any
prejudice that he might suffer as a result of using his true and
official name.
In sum, the petition in the trial court in so far as it prayed for
the change of petitioner's first name was not within that
court's primary jurisdiction as the petition should have been
filed with the local civil registrar concerned, assuming it could
be legally done. It was an improper remedy because the
proper remedy was administrative, that is, that provided
under RA 9048. It was also filed in the wrong venue as the
proper venue was in the Office of the Civil Registrar of Manila
where his birth certificate is kept. More importantly, it had no
merit since the use of his true and official name does not
prejudice him at all. For all these reasons, the Court of
Appeals correctly dismissed petitioner's petition in so far as
the change of his first name was concerned. EACTSH

NO LAW ALLOWS THE


CHANGE OF ENTRY IN THE
BIRTH CERTIFICATE AS TO
SEX ON THE GROUND OF SEX
REASSIGNMENT
The determination of a person's sex appearing in his birth
certificate is a legal issue and the court must look to the
statutes. 21 In this connection, Article 412 of the Civil Code
provides:
ART. 412. No entry in the civil register shall be changed or
corrected without a judicial order.
Together with Article 376 of the Civil Code, this provision was
amended by RA 9048 in so far as clerical or
typographical errors are involved. The correction or change of
such matters can now be made through administrative
proceedings and without the need for a judicial order. In
effect, RA 9048 removed from the ambit of Rule 108 of the
Rules of Court the correction of such errors. 22 Rule 108 now
applies only to substantial changes and corrections in entries
in the civil register. 23
Section 2 (c) of RA 9048 defines what a "clerical or
typographical error" is:
SECTION 2. Definition of Terms. As used in this Act, the
following terms shall mean:
xxx xxx xxx

(3) "Clerical or typographical error" refers to a mistake


committed in the performance of clerical work in writing,
copying, transcribing or typing an entry in the civil register
that is harmless and innocuous, such as misspelled name or
misspelled place of birth or the like, which is visible to the
eyes or obvious to the understanding, and can be corrected or
changed only by reference to other existing record or
records: Provided, however, That no correction must involve
the change of nationality, age, status or sex of the petitioner.
(emphasis supplied)
Under RA 9048, a correction in the civil registry involving the
change of sex is not a mere clerical or typographical error. It is
a substantial change for which the applicable procedure is
Rule 108 of the Rules of Court. AIDcTE
The entries envisaged in Article 412 of the Civil Code and
correctable under Rule 108 of the Rules of Court are those
provided in Articles 407 and 408 of the Civil Code: 24
ART. 407. Acts, events and judicial decrees concerning the
civil status of persons shall be recorded in the civil register.
ART. 408. The following shall be entered in the civil register:
(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5)
annulments of marriage; (6) judgments declaring marriages
void from the beginning; (7) legitimations; (8) adoptions; (9)
acknowledgments of natural children; (10) naturalization; (11)
loss, or (12) recovery of citizenship; (13) civil interdiction; (14)
judicial determination of filiation; (15) voluntary emancipation
of a minor; and (16) changes of name.
The acts, events or factual errors contemplated under Article
407 of the Civil Code include even those that occur after
birth. 25 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." 26 The birth
certificate of petitioner contained no error. All entries therein,
including those corresponding to his first name and sex, were
all correct. No correction is necessary.
Article 407 of the Civil Code authorizes the entry in the civil
registry of certain acts (such as legitimations,
acknowledgments of illegitimate children and
naturalization),events (such as births, marriages,
naturalization and deaths) and judicial decrees (such as legal
separations, annulments of marriage, declarations of nullity of
marriages, adoptions, naturalization, loss or recovery of
citizenship, civil interdiction, judicial determination of filiation
and changes of name). These acts, events and judicial
decrees produce legal consequences that touch upon the
legal capacity, status and nationality of a person. Their effects
are expressly sanctioned by the laws. In contrast, 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.
"Status" refers to the circumstances affecting the legal
situation (that is, the sum total of capacities and incapacities)
of a person in view of his age, nationality and his family
membership. 27 DHaEAS
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. The comprehensive
term status . . . include such matters as the beginning and
end of legal personality, capacity to have rights in general,

family relations, and its various aspects, such as birth,


legitimation, adoption, emancipation, marriage, divorce, and
sometimes even succession. 28 (emphasis supplied)
A person's sex is an essential factor in marriage and family
relations. It is a part of a person's legal capacity and civil
status. In this connection, Article 413 of the Civil Code
provides:
ART. 413. All other matters pertaining to the registration of
civil status shall be governed by special laws.
But there is no such special law in the Philippines governing
sex reassignment and its effects. This is fatal to petitioner's
cause.
Moreover, Section 5 of Act 3753 (the Civil Register Law)
provides:
SEC. 5. Registration and certification of births. The
declaration of the physician or midwife in attendance at the
birth or, in default thereof, the declaration of either parent of
the newborn child, shall be sufficient for the registration of a
birth in the civil register. Such declaration shall be exempt
from documentary stamp tax and shall be sent to the local
civil registrar not later than thirty days after the birth, by the
physician or midwife in attendance at the birth or by either
parent of the newborn child.
In such declaration, the person above mentioned shall certify
to the following facts: (a) date and hour of birth; (b) sex and
nationality of infant; (c) names, citizenship and religion of
parents or, in case the father is not known, of the mother
alone; (d) civil status of parents; (e) place where the infant
was born; and (f) such other data as may be required in the
regulations to be issued. AScHCD
xxx xxx xxx (emphasis supplied)
Under the Civil Register Law, a birth certificate is a historical
record of the facts as they existed at the time of
birth. 29 Thus, the sex of a person is determined at birth,
visually done by the birth attendant (the physician or midwife)
by examining the genitals of the infant. Considering that there
is no law legally recognizing sex reassignment, the
determination of a person's sex made at the time of his or her
birth, if not attended by error, 30 is immutable. 31
When words are not defined in a statute they are to be given
their common and ordinary meaning in the absence of a
contrary legislative intent. The words "sex," "male" and
"female" as used in the Civil Register Law and laws
concerning the civil registry (and even all other laws) should
therefore be understood in their common and ordinary usage,
there being no legislative intent to the contrary. In this
connection, sex is defined as "the sum of peculiarities of
structure and function that distinguish a male from a
female" 32 or "the distinction between male and
female." 33 Female is "the sex that produces ova or bears
young" 34 and male is "the sex that has organs to produce
spermatozoa for fertilizing ova." 35 Thus, the words "male"
and "female" in everyday understanding do not include
persons who have undergone sex reassignment. Furthermore,
"words that are employed in a statute which had at the time a
well-known meaning are presumed to have been used in that
sense unless the context compels to the contrary." 36 Since
the statutory language of the Civil Register Law was enacted
in the early 1900s and remains unchanged, it cannot be
argued that the term "sex" as used then is something
alterable through surgery or something that allows a postoperative male-to-female transsexual to be included in the
category "female." DCTHaS

For these reasons, 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. Thus, there is no legal
basis for his petition for the correction or change of the
entries in his birth certificate.
NEITHER MAY ENTRIES IN THE BIRTH
CERTIFICATE AS TO FIRST NAME OR
SEX BE CHANGED ON THE GROUND OF
EQUITY
The trial court opined that its grant of the petition was in
consonance with the principles of justice and equity. It
believed that allowing the petition would cause no harm,
injury or prejudice to anyone. This is wrong.
The changes sought by petitioner will have serious and wideranging legal and public policy consequences. First, even the
trial court itself found that the petition was but petitioner's
first step towards his eventual marriage to his male fianc.
However, marriage, one of the most sacred social institutions,
is a special contract of permanent union between a man and a
woman. 37 One of its essential requisites is the legal capacity
of the contracting parties who must be a male and a
female. 38 To grant the changes sought by petitioner will
substantially reconfigure and greatly alter the laws on
marriage and family relations. It will allow the union of a man
with another man who has undergone sex reassignment (a
male-to-female post-operative transsexual). Second, there are
various laws which apply particularly to women such as the
provisions of the Labor Code on employment of
women, 39 certain felonies under the Revised Penal
Code 40 and the presumption of survivorship in case of
calamities under Rule 131 of the Rules of Court, 41 among
others. These laws underscore the public policy in relation to
women which could be substantially affected if petitioner's
petition were to be granted.

It is true that Article 9 of the Civil Code mandates that "[n]o


judge or court shall decline to render judgment by reason of
the silence, obscurity or insufficiency of the law." However, it
is not a license for courts to engage in judicial legislation. The
duty of the courts is to apply or interpret the law, not to make
or amend it.
In our system of government, it is for the legislature, should it
choose to do so, to determine what guidelines should govern
the recognition of the effects of sex reassignment. The need
for legislative guidelines becomes particularly important in
this case where the claims asserted are statute-based.
To reiterate, the statutes define who may file petitions for
change of first name and for correction or change of entries in
the civil registry, where they may be filed, what grounds may
be invoked, what proof must be presented and what
procedures shall be observed. If the legislature intends to
confer on a person who has undergone sex reassignment the
privilege to change his name and sex to conform with his
reassigned sex, it has to enact legislation laying down the
guidelines in turn governing the conferment of that privilege.
It might be theoretically possible for this Court to write a
protocol on when a person may be recognized as having
successfully changed his sex. However, this Court has no
authority to fashion a law on that matter, or on anything else.
The Court cannot enact a law where no law exists. It can only
apply or interpret the written word of its co-equal branch of
government, Congress.

Petitioner pleads that "[t]he unfortunates are also entitled to a


life of happiness, contentment and [the] realization of their
dreams." No argument about that. The Court recognizes that
there are people whose preferences and orientation do not fit
neatly into the commonly recognized parameters of social
convention and that, at least for them, life is indeed an ordeal.
However, the remedies petitioner seeks involve questions of
public policy to be addressed solely by the legislature, not by
the courts.AaCTID
||| (Silverio v. Republic, G.R. No. 174689, [October 19, 2007],
562 PHIL 953-974)

In the instant case, if we determine respondent to be a


female, then there is no basis for a change in the birth
certificate entry for gender. But if we determine, based on
medical testimony and scientific development showing the
respondent to be other than female, then a change in the
subject's birth certificate entry is in order. IaSAHC
Biologically, nature endowed respondent with a mixed
(neither consistently and categorically female nor consistently
and categorically male) composition. Respondent has female
(XX) chromosomes. However, respondent's body system
naturally produces high levels of male hormones (androgen).
As a result, respondent has ambiguous genitalia and the
phenotypic features of a male.
Ultimately, 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 his/her sex. Respondent here thinks of
himself as a male and considering that his body produces high
levels of male hormones (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.
Respondent here has simply let nature take its course and has
not taken unnatural steps to arrest or interfere with what he
was born with. And accordingly, he has already ordered his life
to that of a male. Respondent could have undergone
treatment and taken steps, like taking lifelong
medication, 26 to force his body into the categorical mold of a
female but he did not. He chose not to do so. Nature has
instead taken its due course in respondent's development to
reveal more fully his male characteristics. TCacIE
In the absence of a law on the matter, the Court will not
dictate on respondent concerning a matter so innately private
as one's sexuality and lifestyle preferences, much less on
whether or not to undergo medical treatment to reverse the
male tendency due to CAH. The Court will not consider
respondent as having erred in not choosing to undergo
treatment in order to become or remain as a female. Neither
will the Court force respondent to undergo treatment and to
take medication in order to fit the mold of a female, as society
commonly currently knows this gender of the human species.
Respondent is the one who has to live with his intersex
anatomy. To him belongs the human right to the pursuit of
happiness and of health. Thus, to him should belong the
primordial choice of what courses of action to take along the
path of his sexual development and maturation. In the
absence of evidence that respondent is an
"incompetent" 27 and in the absence of evidence to show that
classifying respondent as a male will harm other members of
society who are equally entitled to protection under the law,
the Court affirms as valid and justified the respondent's
position and his personal judgment of being a male.

In so ruling we do no more than give respect to (1) the


diversity of nature; and (2) how an individual deals with what
nature has handed out. In other words, we respect
respondent's congenital condition and his mature decision to
be a male. Life is already difficult for the ordinary person. We
cannot but respect how respondent deals with
his unordinary state and thus help make his life easier,
considering the unique circumstances in this case.
As for respondent's change of name under Rule 103, this
Court has held that a change of name 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. 28 The trial court's grant of respondent's change of
name from Jennifer to Jeff implies a change of a feminine
name to a masculine name. Considering the consequence that
respondent's change of name merely recognizes his preferred
gender, we find merit in respondent's change of name. Such a
change will conform with the change of the entry in his birth
certificate from female to male.

execution for the payment of obligations incurred before the


effectivity of the Family Code. Article 162 simply means that
all existing family residences at the time of the effectivity of
the Family Code, are considered family homes and are
prospectively entitled to the benefits accorded to a family
home under the Family Code. Article 162 does not state that
the provisions of Chapter 2, Title V have a retroactive effect.
Is the family home of petitioner exempt from execution of the
money judgment aforecited? No. The debt or liability which
was the basis of the judgment arose or was incurred at the
time of the vehicular accident on March 16, 1976 and the
money judgment arising therefrom was rendered by the
appellate court on January 29, 1988. Both preceded the
effectivity of the Family Code on August 3, 1988. This case
does not fall under the exemptions from execution provided in
the Family Code.
As to the agricultural land subject of the execution, the trial
court correctly ruled that the levy to be made by the sheriff
shall be on whatever rights the petitioner may have on the
land.

||| (Republic v. Cagandahan, G.R. No. 166676, [September 12,


2008], 586 PHIL 637-653)

||| (Modequillo v. Breva, G.R. No. 86355, [May 31, 1990], 264
PHIL 381-387)

4. ID.; ACTIONS; ACTION IN REM; A PETITION FOR


SUBSTANTIAL CORRECTIONS OR CANCELLATIONS OF ENTRIES
IN CIVIL REGISTRY RECORDS AFFECTING THE STATUS OR
LEGITIMACY OF A PERSON IS A PROCEEDING IN REM; CASE AT
BAR. In the case at bar, the filing with the trial court of the
petition for cancellation vested the latter jurisdiction over the
res. Substantial corrections or cancellations of entries in civil
registry records affecting the status or legitimacy of a person
may be effected through the institution of a petition under
Rule 108 of the Revised Rules of Court, with the proper
Regional Trial Court. Being a proceeding in rem, acquisition of
jurisdiction over the person of petitioner is therefore not
required in the present case. It is enough that the trial court is
vested with jurisdiction over the subject matter.

First, family residences constructed before the effectivity of


the Family Code or before August 3, 1988 must be constituted
as a family home either judicially or extrajudicially in
accordance with the provisions of the Civil Code in order to be
exempt from execution;

5. ID.; CIVIL PROCEDURE; ANNULMENT OF JUDGMENT;


EXTRINSIC FRAUD, WHEN PRESENT. Extrinsic fraud exists
when there is a fraudulent act committed by the prevailing
party outside of the trial of the case, whereby the defeated
party was prevented from presenting fully his side of the case
by fraud or deception practiced on him by the prevailing party.
||| (Alba v. Court of Appeals, G.R. No. 164041, [July 29, 2005],
503 PHIL 451-466)

n the present case, the residential house and lot of petitioner


was not constituted as a family home whether judicially or
extrajudicially under the Civil Code. It became a family home
by operation of law only under Article 153 of the Family Code.
It is deemed constituted as a family home upon the effectivity
of the Family Code on August 3, 1988 not August 4, one year
after its publication in the Manila Chronicle on August 4, 1987
(1988 being a leap year). LLpr
The contention of petitioner that it should be considered a
family home from the time it was occupied by petitioner and
his family in 1969 is not well-taken. Under Article 162 of the
Family Code, it is provided that "the provisions of this Chapter
shall also govern existing family residences insofar as said
provisions are applicable." It does not mean that Articles 152
and 153 of said Code have a retroactive effect such that all
existing family residences are deemed to have been
constituted as family homes at the time of their occupation
prior to the effectivity of the Family Code and are exempt from

Second, family residences constructed after the effectivity of


the Family Code on August 3, 1988 are automatically deemed
to be family homes and thus exempt from execution from the
time it was constituted and lasts as long as any of its
beneficiaries actually resides therein;
Third, family residences which were not judicially or
extrajudicially constituted as a family home prior to the
effectivity of the Family Code, but were existing thereafter,
are considered as family homes by operation of law and are
prospectively entitled to the benefits accorded to a family
home under the Family Code.
Here, the subject property became a family residence
sometime in January 1987. There was no showing, however,
that the same was judicially or extrajudicially constituted as a
family home in accordance with the provisions of the Civil
Code. Still, when the Family Code took effect on August 3,
1988, the subject property became a family home by
operation of law and was thus prospectively exempt from
execution. The petitioners were thus correct in asserting that
the subject property was a family home.
The family home's exemption from execution must be set up
and proved to the Sheriff before the sale of the property at
public auction.
Despite the fact that the subject property is a family home
and, thus, should have been exempt from execution, we
nevertheless rule that the CA did not err in dismissing the
petitioners' complaint for nullification of TCT No. T-221755 (M).
We agree with the CA that the petitioners should have
asserted the subject property being a family home and its
being exempted from execution at the time it was levied or
within a reasonable time thereafter. As the CA aptly pointed
out: Cdpr
In the light of the facts above summarized, it is evident that
appellants did not assert their claim of exemption within a
reasonable time. Certainly, reasonable time, for purposes of

the law on exemption, does not mean a time after the


expiration of the one-year period provided for in Section 30 of
Rule 39 of the Rules of Court for judgment debtors to redeem
the property sold on execution, otherwise it would render
nugatory final bills of sale on execution and defeat the very
purpose of execution to put an end to litigation. . . . . 24
||| (Spouses Oliva-De Mesa v. Spouses Acero, Jr., G.R. No.
185064, [January 16, 2012], 679 PHIL 43-61)

"A perusal of Rule 107 of the Rules of Court on absentees


reveals that it is based on the provisions of Title XIV of the
New Civil Code on absence. And the reason and purpose of
the provisions of the New Civil Code on absence (Arts. 381 to
396) are: (1) The interest of the person himself who has
disappeared; (2) The rights of third parties against the
absentee, especially those who have rights which would
depend upon the death of the absentee; and (3) The general
interest of society which may require that property does not
remain abandoned without someone representing it and
without an owner (Civil Code by Francisco, Vol. 2, pp. 930-931,
1953 Ed.).
It will thus be noted that said provisions of the New Civil Code
are concerned with absence only with reference to its effects
on property (2 Manresa, 101-102, Civil Code by Francisco, Vol.
2, p. 932, 1953 Ed.). Article 384, New Civil Code, which is
reproduced from Article 184 of the old Code, and relied upon
by herein petitioner, refers to the second period or stage of
absence, and specifically indicates the precise moment when
the same may begin. Thus, this article provides that after the
lapse of two (2) years without any news about the absentee or
since the receipt of the last news, and five (5) years in case
the absentee has left a person in charge of the administration
of his property, his absence may be declared by the Court.
The primordial purpose of this declaration is to provide for an
administrator of the property of the absentee. It cannot be
said that because of the comma (,) between the words 'news'
and 'and', the two-year period mentioned in the first part of
the law has no reference to or bearing on the property of the
absentee. Manresa states that the only reason for the
different periods is because in one case (2 years) the
absentee has not left a person in charge of the administration
of his property, and in the other case (5 years) the absentee
has provided for his absence by appointing an administrator
of his property dispensing in a way the giving of news about
himself (2 Manresa, 127-128). It is worth to note, in this
connection, that the first period or stage of absence as
covered by Article 381 of the New Civil Code provides for
provisional measures the appointment by the Court of a
person to represent the absentee 'in all that may be
necessary' when a mere presumption of his absence arises.
It should be noted that the appointment of a 'representative'
of the absentee is for the protection of the interest of the
latter. This is clear from the provisions of Article 382 which
enjoins the judge to 'take the necessary measures to
safeguard the rights and interests of the absentee . . .'
Moreover, it is not enough that a person is declared an
absentee. The law (see Articles 381, 382 and 383) requires
the judge to appoint a representative for the absentee
precisely to safeguard the property or interest of the latter. It
is thus imperative that the declaration of absence be for a
specific purpose, and that purpose can be no other than the
protection of the interest or property of the absentee. Castan,
in his commentary, emphatically states that there must be an
immediate necessity for the representation of the absentee in
some specific urgent matters (Vol. 1, pp. 182-183).
The same observation and commentary can be said of the
corresponding complimenting provisions of Rule 107 of the
Rules of Court, particularly Sections 6 and 7 thereof which

make it mandatory upon the Court to appoint a


representative, trustee or administrator who shall safeguard
the rights and interest of the absentee. LLphil
Considering that neither the petition alleges, nor the evidence
shows, that Roberto L. Reyes has any rights, interest or
property in the Philippines, there is no point in judicially
declaring him an absentee."
We affirm the order of the lower Court dismissing the petition.
As this Court said in Jones vs. Hortiguela, 64 Phil. 197:
". . . For the purposes of the civil marriage law, it is not
necessary to have the former spouse judicially declared an
absentee. The declaration of absence made in accordance
with the provisions of the Civil Code has for its sole purpose to
enable the taking of the necessary precautions for the
administration of the estate of the absentee. For the
celebration of civil marriage, however, the law only requires
that the former spouse has been absent for seven consecutive
years at the time of the second marriage, that the spouse
present does not know his or her former spouse to be living,
that such former spouse is generally reputed to be dead and
the spouse present so believes at the time of the celebration
of the marriage (section III, paragraph 2, General Orders, No.
68)." (On page 183).
The need to have a person judicially declared an absentee is
when he has properties which have to be taken cared of or
administered by a representative appointed by the Court
(Article 384, Civil Code); the spouse of the absentee is asking
for separation of property (Article 191, Civil Code) or his wife
is asking the Court that the administration of all classes of
property in the marriage be transferred to her (Article 196,
Civil Code). The petition to declare the husband an absentee
and the petition to place the management of the conjugal
properties in the hands of the wife may be combined and
adjudicated in the same proceedings, Peyer vs. Martinez, 88
Phil. 72, 80).
||| (In re: Reyes v. Alejandro, G.R. No. L-32026, [January 16,
1986], 225 PHIL 49-54)

Further, the Court explained that presumption of death cannot


be the subject of court proceedings independent of the
settlement of the absentee's estate. TaIHEA
In re Szatraw 14 is instructive. In that case, petitioner
contracted marriage with a Polish national in 1937. They lived
together as husband and wife for three years. Sometime in
1940, the husband, on the pretext of visiting some friends, left
the conjugal abode with their child and never returned. After
inquiring from friends, petitioner found that her husband went
to Shanghai, China. However, friends who came from
Shanghai told her that the husband was not seen there. In
1948, petitioner filed a petition for the declaration of
presumptive death of her husband arguing that since the
latter had been absent for more than seven years and she had
not heard any news from him and about her child, she
believes that he is dead. In deciding the case, the Court said:
The petition is not for the settlement of the estate of Nicolai
Szatraw, because it does not appear that he possessed
property brought to the marriage and because he had
acquired no property during his married life with the
petitioner. The rule invoked by the latter is merely one of
evidence which permits the court to presume that a person is
dead after the fact that such person had been unheard from in
seven years had been established. This presumption may
arise and be invoked and made in a case, either in an action
or in a special proceeding, which is tried or heard by, and

submitted for decision to, a competent court. Independently


of such an action or special proceeding, the presumption of
death cannot be invoked, nor can it be made the subject of an
action or special proceeding. In this case, there is no right to
be enforced nor is there a remedy prayed for by the petitioner
against her absent husband. Neither is there a prayer for the
final determination of his right or status or for the
ascertainment of a particular face (Hagans v. Wislizenus, 42
Phil. 880), for the petition does not pray for a declaration that
the petitioner's husband is dead, but merely asks for a
declaration that he be presumed dead because he had been
unheard from in seven years. If there is any pretense at
securing a declaration that the petitioner's husband is dead,
such a pretension cannot be granted remise it is
unauthorized. The petition is for a declaration that the
petitioner's husband is presumptively dead. But this
declaration, even if judicially made, would not improve the
petitioner's situation, because such a presumption is already
established by law. A judicial pronouncement to that effect,
even if final and executory, would still be a prima facie
presumption only. It is still disputable. It is for that reason that
it cannot be the subject of a judicial pronouncement or
declaration, if it is the only question or matter involved in a
case, or upon which a competent court has to pass. The latter
must decide finally the controversy between the parties, or
determine finally the right or status of a party or establish
finally a particular fact, out of which certain rights and
obligations arise or may arise; and once such controversy is
decided by a final judgment, or such right or status
determined, or such particular fact established, by a final
decree, then the judgment on the subject of the controversy,
or the decree upon the right or status of a party or upon the
existence of a particular fact, becomes res judicata, subject to
no collateral attack, except in a few rare instances especially
provided by law. It is, therefore, clear that a judicial
declaration that a person is presumptively dead, because he
had been unheard from in seven years, being a
presumption juris tantumonly, subject to contrary proof,
cannot reach the stage of finality or become final. Proof of
actual death of the person presumed dead because he had
been unheard from in seven years, would have to be made in
another proceeding to have such particular fact finally
determined. If a judicial decree declaring a person
presumptively dead, because he had not been heard from in
seven years, cannot become final and executory even after
the lapse of the reglementary period within which an appeal
may be taken, for such presumption is still disputable and
remains subject to contrary proof, then a petition for such a
declaration is useless, unnecessary, superfluous and of no
benefit to the petitioner. 15
In Lukban v. Republic, 16 petitioner Lourdes G. Lukban
contracted marriage with Francisco Chuidian on December 10,
1933. A few days later, on December 27, Francisco left
Lourdes after a violent quarrel. She did not hear from him
after that day. Her diligent search, inquiries from his parents
and friends, and search in his last known address, proved
futile. Believing her husband was already dead since he had
been absent for more than twenty years, petitioner filed a
petition in 1956 for a declaration that she is a widow of her
husband who is presumed to be dead and has no legal
impediment to contract a subsequent marriage. On the other
hand, the antecedents in Gue v. Republic 17 are similar
to Szatraw. On January 5, 1946, Angelina Gue's husband left
Manila where they were residing and went to Shanghai, China.
From that day on, he had not been heard of, had not written
to her, nor in anyway communicated with her as to his
whereabouts. Despite her efforts and diligence, she failed to
locate him. After 11 years, she asked the court for a
declaration of the presumption of death of Willian Gue,
pursuant to the provisions of Article 390 of the Civil Code of
the Philippines.

In both cases, the Court reiterated its ruling in Szatraw. It held


that a petition for judicial declaration that petitioner's
husband is presumed to be dead cannot be entertained
because it is not authorized by law. 18 IaEHSD
From the foregoing, it can be gleaned that, under the Civil
Code, the presumption of death is established by law 19 and
no court declaration is needed for the presumption to arise.
Since death is presumed to have taken place by the seventh
year of absence, 20 Sofio is to be presumed dead starting
October 1982.
Consequently, at the time of petitioner's marriage to Virgilio,
there existed no impediment to petitioner's capacity to marry,
and the marriage is valid under paragraph 2 of Article 83 of
the Civil Code.
Further, considering that it is the Civil Code that applies, proof
of "well-founded belief" is not required. Petitioner could not
have been expected to comply with this requirement since the
Family Code was not yet in effect at the time of her marriage
to Virgilio. The enactment of the Family Code in 1988 does not
change this conclusion. The Family Code itself states:
Art. 256. This Code shall have retroactive effect insofar as it
does not prejudice or impair vested or acquired rights in
accordance with the Civil Code or other laws.
To retroactively apply the provisions of the Family Code
requiring petitioner to exhibit "well-founded belief" will,
ultimately, result in the invalidation of her second marriage,
which was valid at the time it was celebrated. Such a situation
would be untenable and would go against the objectives that
the Family Code wishes to achieve.
In sum, we hold that the Petition must be dismissed since no
decree on the presumption of Sofio's death can be granted
under the Civil Code, the same presumption having arisen by
operation of law. However, we declare that petitioner was
capacitated to marry Virgilio as the time their marriage was
celebrated in 1985 and, therefore, the said marriage is legal
and valid.
||| (Valdez v. Republic, G.R. No. 180863, [September 8, 2009],
615 PHIL 62-72)