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SPECIAL PROCEEDINGS

A foresight to the bar exam

A last minute reminder

By: ATTY. GEMY LITO L. FESTIN Dean, Polytechnic University of the

Philippines Professor of Criminal Law Review/Remedial

Law subjects, SSC-R and PUP President, IBP MANILA I

SPECIAL PROCEEDING. It is an application to establish the status or right of a party or a particular fact or any remedy other than an ordinary suit in a court of justice.

DISTINGUISH SPECIAL PROCEEDING FROM AN ORDINARY ACTION. Pursuant to Rule 1, Section 3 of the 1997 Rules of Civil Procedure, 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 while a special proceeding under the same rule is a remedy by which a party seeks to establish a status, a right or a particular fact. Unlike actions, a special proceeding is generally commenced by application, petition or special form of pleading as may be provided for by the particular rule or law.

SEC. 2, RULE 72 OF THE 1997 RULES OF CIVIL PROCEDURE PROVIDES THAT IN THE ABSENCE OF SPECIAL PROVISIONS, THE RULES PROVIDED FOR IN ORDINARY ACTIONS SHALL BE, AS FAR AS PRACTICABLE, APPLICABLE IN SPECIAL PROCEEDINGS. The word “practicable” is defined as possible to practice or perform; capable of being put into practice, done or accomplished. This means that in the absence of special provisions, rules in ordinary actions may be applied in special proceedings as much as possible and in doing so would not pose an obstacle to said proceedings. Nowhere in the Rules of Court can we find that rules in ordinary actions are inapplicable or merely suppletory to special proceedings.

JURISDICTION OVER PROBATE PROCEEDING. Pursuant to R.A. No. 7691, jurisdiction depends upon the gross value of the estate of the decedent. In Metro Manila, the municipal trial court has jurisdiction on the proceeding if the value of the estate does not exceed P400, 000.00, otherwise, the regional trial court has jurisdiction over the same. Outside Metro Manila, municipal trial courts, metropolitan trial courts and municipal circuit trial courts have jurisdiction over probate proceedings if the gross value of the estate left by the decedent does not exceed P300,000.00 (beginning April 16, 2004).

IMPORTANCE OF THE DECEDENT’S RESIDENCE. The residence of the decedent at the time of his death is determinative of the venue of the

proceeding. It is only when the decedent is a non-resident of the Philippines at the time of his death that venue lies in any province in which he had estate.

CAN A PROBATE COURT ISSUE WRITS OF EXECUTION? As a rule, the probate court cannot issue writs of execution. The exceptions are the following: 1. To satisfy the contributive shares of the devisees, legatees and heirs on possession of the decedent’s assets as laid down in Rule 88 Sec.6; 2. To enforce payment of the expenses of partition under Rule 90 Sec.3; 3. To satisfy the cost when a person is cited for examination in probate proceedings under Rule 142 Sec. 13.

RULE 74-SUMMARY SETTLEMENT OF ESTATES

The general rule is: when a person dies leaving property, the same should be judicially administered and the competent court should appoint a qualified administrator, in the order established in Section 6, Rule 78, in case the deceased left no will, or in case he had left one, should he fail to name an executor therein. This Rule provides exceptions, namely:(1) Extrajudicial settlement (Sec.1);(2) Summary settlement of estates of small value (Sec. 2).

DISTINCTION BETWEEN EXTRAJUDICIAL SETTLEMENT AND SUMMARY SETTLEMENT OF ESTATES OF SMALL VALUE.

EXTRAJUDICIAL SETTLEMENT

SUMMARY SETTLEMENT

1. Requires no court intervention.

Requires court intervention by summary proceedings

2. The value of the estate is immaterial.

Applicable where the gross value of the estate is P10,000.00. The amount is jurisdictional.

3. Allowed only in intestate succession.

Allowed in both testate and intestate estates.

4. Proper when there are no outstanding debts of the estate at the time of the settlement.

available even if there are debts.

5. Instituted by agreement of all heirs.

Instituted by any interested party and even by a creditor of the estate, without the consent of all the heirs.

-Publication does not constitute constructive notice. As held in the case of BENATIRO v. HEIRS OF CUYOS 560 SCRA 478, Extrajudicial Settlement of Estates under Section 1 of Rule 74 is an ex parte proceeding, and the rule plainly states that persons who do not participate or had no notice of an extrajudicial settlement will not be bound thereby, and contemplates a notice that has been sent out or issued before any deed of settlement or partition is

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agreed upon, and not after such an agreement has already been executed; The publication of the settlement does not constitute constructive notice to the heirs who had no knowledge or did not take part in it because the same was notice after the fact of execution; The requirement of publication is geared for the protection of creditors and was never intended to deprive heirs of their lawful participation in the decedent’s estate.

WHAT IS AN AFFIDAVIT OF SELF-ADJUDICATION? It is an affidavit required by Section 1 of Rule 74. The same is to be executed by the sole heir of a deceased person for the purpose of adjudicating to himself the entire estate left by the decedent.

RECENT CASES:

REBUSQUILLO [substituted by her heirs, except Emelinda R. Gualvez] and OROSCO, Petitioners, vs. SPS. GUALVEZ and

the CITY ASSESSOR OF LEGAZPI CITY, Respondents. G.R. No. 204029 JUNE 4, 2014

SC Ruling:

It has been ruled that the declaration of heirship must be made in a special proceeding, not in an independent civil action. This Court likewise held that recourse to administration proceedings to determine the heirs is sanctioned only if there is a good and compelling reason for such recourse. Hence, the Court had allowed exceptions to the rule requiring administration proceedings as when the parties in the civil case already presented their evidence regarding the issue of heirship, and the RTC had consequently rendered judgment upon the issues it defined during the pre-trial.

In Portugal v. Portugal-Beltran, the Court held that the 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 Section 1, Rule 74 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 of 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.

In light of the admission of respondent-spouses Gualvez, it is with more reason that a resort to special proceeding will be an unnecessary superfluity. Accordingly, the court a quo had properly rendered judgment on the validity of the Affidavit of Self-Adjudication executed by Avelina. As pointed out by the trial court, an Affidavit of Self-Adjudication is only proper when the affiant is the sole heir of the decedent. The second sentence of Section 1, Rule 74 of the Rules of Court is patently clear that self-adjudication is only warranted when there is only one heir:

Section 1. Extrajudicial settlement by agreement between heirs. –– x x x If there is only one heir, he may adjudicate to himself the entire estate by means of an affidavit filed in the office of the register of deeds. x x x (emphasis supplied)

As admitted by respondents, Avelina was not the sole heir of Eulalio. In fact, petitioner Salvador is one of the co-heirs by right of representation of his mother. Without a doubt, Avelina had perjured herself when she declared in the affidavit that she is "the only daughter and sole heir of spouses EULALIO ABARIENTOS AND VICTORIA VILLAREAL." The

falsity of this claim renders her act of adjudicating to herself the inheritance left by her father invalid.

RULE 75-PRODUCTION OF WILL. ALLOWANCE OF WILL NECESSARY

SEC.1. No will shall pass either real or personal estate unless it is proved and allowed in the proper court. Subject to the right of appeal, such allowance of the will shall be conclusive as to its due execution.

Principles: 1. the probate of a will is mandatory. 2. Until admitted to probate, [a will] has no effect and no right can be claimed thereunder. 3. A decree of probate is conclusive with respect to the due execution of the will and it cannot be impugned except on the ground of fraud, in any separate or independent action or proceeding. Manahan vs. Manahan, 58 Phil. 448, 451 4. In a special proceeding for the probate of a will, the issue, by and large, is restricted to the extrinsic validity of the will, i.e. whether the testator, being of sound mind, freely executed the will in accordance with the formalities prescribed by law. As a rule, the question of ownership is an extraneous matter which the probate court cannot resolve with finality. 5. The general rule provides that a probate court cannot decide a question of title of ownership. Are there any exception to the rule?

The probate court may pass upon the question of title to property on the following: (a) The interested parties who are all heirs of the deceased consent thereto and the interests of third parties are not prejudiced; (b) In a provisional manner, to determine whether said property should be included in or excluded from the inventory, without prejudice to the final determination of title in a separate action.

6. Due execution covers the following: 1. The will was executed in accordance with the strict formalities of the law; 2. The testator was of sound and disposing mind at the time of the execution of the will; 3. Consent is not vitiated by any duress, fear or threats; 4. The will was not procured by any undue influence from the beneficiary or by some other person for his benefit; 5. The signature of the testator is genuine; 6. The doctrine of estoppel is not applicable in probate proceedings since the presentation and the probate of a will are required by public policy. 7. In a special proceeding for the probate of a will, the issue by and large, is restricted to the extrinsic validity of the will, i.e. whether the testator, being of sound mind, freely executed the will in accordance with the formalities prescribed by law. As a rule, the question of ownership is an extraneous matter which the probate court cannot resolve with finality. 8. Section 3, Rule 75 of the Rules of Court

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is explicit. A person named as executor in a will shall, within twenty (20) days after he knows of the death of the testator, or within twenty (20) days after he knows that he is named executor if he obtained such knowledge after the death of the testator, present such will to the court having jurisdiction. Considering that Cancio Vidal is named as executor in the will, he is therefore obliged to file a petition for probate of the will.

RULE 77-ALLOWANCE OF WILL PROVED OUTSIDE THE PHILIPPINES

SEC.1 PROVIDES THAT WILLS PROVED AND ALLOWED IN A FOREIGN COUNTRY, ACCORDING TO THE LAWS OF SUCH COUNTRY, MAY BE ALLOWED, FILED, AND RECORDED BY THE PROPER COURT OF FIRST INSTANCE IN THE PHILIPPINES.

A WILL PROBATED IN A FOREIGN COUNTRY. Sec. 1 of Rule 77 provides that a will proved and allowed in a foreign country must be re- probated in the Philippines. If the decedent owns properties in different countries, separate proceedings must be had to cover the same.

MATTERS NEED TO BE PROVEN DURING A RE-PROBATE PROCEEDING. At the re-probate proceedings in the Philippines, the proponent must prove (a) that the testator was domiciled in the foreign country, (b) that the will has been admitted to probate in such country, (c) that the foreign court was, under the laws of said foreign country, a probate court with jurisdiction over the proceedings,(d) the law on probate procedure in the said foreign country is a proof of compliance therewith, and (e) the legal requirements in said foreign country for the valid execution of the will .

RULE 78-LETTERS TESTAMENTARY AND OF ADMINISTRATION

SEC. 1. WHO ARE INCOMPETENT TO SERVE AS EXECUTORS OR ADMINISTRATORS.

No person is competent to serve as executor or administrator who:

(a) is a minor;

(b) is not a resident of the Philippines; and

(c) is in the opinion of the court unfit to execute the duties of the trust by reason of drunkenness, improvidence, or want of understanding or integrity, or by reason of conviction of an offense involving moral turpitude.

-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, administration shall be granted:

(a) To the surviving husband or wife, as the case may be, or next of kin, or both, in the discretion of the court, or to such person as such surviving husband or wife, or next of kin, requests to have appointed, if competent and willing to serve;

(b) If such surviving husband or wife, as the case may be, or next of kin, or the person selected by them, be incompetent or unwilling, or if the husband or widow, or next of kin, neglects for thirty (30) days after the death of the person to apply for administration or to request that administration be granted to some other person, it may be granted to one or more of the principal creditors, if competent and willing to serve;

(c) If there is no such creditor competent and willing to serve, it may be granted to such other person as the court may select.

CAN THE COURT SET ASIDE THE ORDER OF PREFERENCE UNDER SEC. 6, RULE 78? As a general rule, the court cannot. The Rules of Court provides for the order of preference in the appointment of an administrator. Ventura vs. Ventura 160 SCRA 810

UNDER WHAT CIRCUMSTANCES MAY THE COURT REJECT THE ORDER OF PREFERENCE? In case the persons who have the preferential right to be appointed under the Rules are not competent or are unwilling to serve, administration may be granted to such other person as the court may appoint.

RECENT CASES:

ARANAS, Petitioner, vs. MERCADO, ET. AL, Respondents.

G.R. No. 156407 January 15, 2014.

SC Ruling:

Under Section 6 (a), Rule 78 of the Rules of Court,

the letters of administration may be granted at the discretion

of the court to the surviving spouse, who is competent and

willing to serve when the person dies intestate. Upon issuing

the letters of administration to the surviving spouse, the RTC

becomes duty-bound to direct the preparation and submission

of the inventory of the properties of the estate, and the

surviving spouse, as the administrator, has the duty and

responsibility to submit the inventory within three months

from the issuance of letters of administration pursuant to Rule

83 of the Rules of Court, viz.:

Section 1. Inventory and appraisal to be returned

within three months. — Within three (3) months

after his appointment every executor or

administrator shall return to the court a true

inventory and appraisal of all the real and personal

estate of the deceased which has come into his

possession or knowledge. In the appraisement of

such estate, the court may order one or more of the

inheritance tax appraisers to give his or their

assistance.

The usage of the word “all” in Section 1, supra,

demands the inclusion of all the real and personal properties of

the decedent in the inventory. However, the word “all” is

qualified by the phrase which has come into his possession or

knowledge, which signifies that the properties must be known

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to the administrator as decedent’s properties or are in her

possession as the administrator. Section 1 allows no exception,

for the phrase true inventory implies that no properties which

appear to be owned by the decedent can be excluded from the

inventory, regardless of whether or not they are in the

possession of another person or entity.

The objective of the Rules of Court in requiring the

inventory and appraisal of the estate of the decedent is "to aid

the court in revising the accounts and determining the

liabilities of the executor or the administrator, and in malting a

final and equitable distribution (partition) of the estate and

then to facilitate the administration of the estate." Hence, the

RTC that presides over the administration of an estate is vested

with wide discretion on the question of what properties should

be included in the inventory. According to Peralta v. Peralta,

the CA cannot impose its judgment in order to supplant that of

the RTC on the issue of which properties are to be included or

excluded from the inventory in the absence of "positive abuse

of discretion," for in the administration of the estates of

deceased persons, "the judges enjoy ample discretionary

powers and the appellate courts should not interfere with or

attempt to replace the action taken by them, unless it be shown

that there has been a positive abuse of discretion." As long as

the RTC commits no patently grave abuse of discretion, its

orders must be respected as part of the regular performance of

its judicial duty.

There is no dispute that the jurisdiction of the trial

court as an intestate court is special and limited. The trial court

cannot adjudicate title to properties which are claimed to be

part of the estate but are claimed to be belonging to third

parties by title adverse to that of the decedent and the estate,

not by virtue of any right of inheritance from the decedent. All

that the trial court can do regarding said properties is to

determine whether or not they should be included in the

inventory of properties to be administered by the

administrator. Such determination is provisional and may be

still revised. As the Court said in Agtarap v. Agtarap:

The general rule is that the jurisdiction of the trial

court, either as a probate court or an intestate court, relates

only to matters having to do with the probate of the will

and/or settlement of the estate 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 merely exercises special and limited

jurisdiction.

However, this general rule is subject to exceptions

as justified by expediency and convenience.

First, the probate court may provisionally pass upon in an intestate or a testate proceeding the question of inclusion in, or exclusion from, the inventory of a piece of property without prejudice to final determination of ownership in a separate action. Second, if the interested parties are all heirs to the estate, 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 resolve issues on ownership. Verily, its jurisdiction extends to matters incidental or collateral to the settlement and distribution of the estate, such as the determination of the status of each heir and whether the property in the inventory is conjugal or exclusive property of the deceased spouse.

RULE 80- SPECIAL ADMINISTRATOR

Sec. 1 provides that when there is delay in granting letters testamentary or of administration by any cause including an appeal from the allowance or disallowance of a will, the court may appoint a special

administrator to take possession and charge of the estate of the deceased until the questions causing the delay are decided and executors or administrators appointed.

DEFINE A SPECIAL ADMINISTRATOR. A special administrator is a representative of decedent appointed by the probate court to care for and preserve his estate until an executor or general administrator is appointed.

-The appointment of a special administrator cannot be the subject of an appeal. No appeal lies from the appointment of a special administrator. An order appointing a special administrator is interlocutory in nature, a mere incident to the judicial proceedings. The court making the appointment retains control over it modify, rescind, or revoke the same on sufficient grounds at any time before final judgment.

DIFFERENTIATE AN ADMINISTRATOR FROM A SPECIAL ADMINISTRATOR. The administrator may be differentiated from a special administrator in the following manner: 1. An administrator is appointed when a decedent died intestate or did not appoint any executor in his will or the will is subsequently disallowed while a special administrator is appointed when there is delay in granting letters testamentary or administration; 2. An administrator is obliged to pay the debts of the estate while a special administrator is not; 3. The appointment of an administrator may be the subject of appeal while in the appointment of a special administrator, the order of appointment is regarded as an interlocutory order and may not be the subject of appeal.

IS THE PREFERENCE OR ORDER OF APPOINTMENT UNDER SECTION 6 OF RULE 78 LIKEWISE APPLICABLE IN THE APPOINTMENT OF A SPECIAL ADMINISTRATOR? Appointment of special administrator lies entirely in the sound discretion of the court. The preference laid down under Section 6 of Rule 78 with respect to the surviving spouse refers to the appointment of a regular administrator or administratix and not to that of a special administrator. Pijuan vs. De Gurrea, 124 Phil. 1527

IS THE ORDER OF REMOVAL OF AN ADMINISTRATOR APPEALABLE? Yes, the order of removal is appealable.

RULE 86-CLAIMS AGAINST ESTATE

SEC. 2. TIME WITHIN WHICH CLAIMS SHALL BE FILED. - In the notice provided in the preceding section (sec. 1), the court shall state the time for the filing of claims against the estate, which shall not be more than twelve (12) nor less than six (6) months after the date of the first publication of the notice. However, at any time before an order of distribution is entered, on application of a creditor who has failed to file his claim within the time previously limited, the

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court may, for cause shown and on such terms as are equitable, allow such claim to be filed within a time not exceeding one (1) month.

“STATUTE OF NON-CLAIMS”. It is the period fixed by Section 2 of Rule 86 for the filing of the claims against the estate. The rule mandates certain creditors of a deceased person to present their claims for examination and allowance within a specified period, the purpose thereof being to settle the estate with dispatch, so that the residue may be delivered to the persons entitled thereto without their being afterwards called upon to respond in actions for claims, which, under the ordinary statute of limitations, have not yet prescribed. Santos vs. Manarang, 27 Phil. 213

PERIOD WITHIN WHICH THE CLAIM MUST BE FILED. The range of the period specified in Section 2 is intended to give the court the discretion to fix the period for the filing of claims. The probate court is permitted by the rule to set the period as long as it is within the limitation provided. It should not be less than six (6) months nor more than twelve (12) months from the day of the first publication of the notice thereof. Such period when fixed by the probate court becomes mandatory.

It is clear from Section 2 of Rule 86 that the period prescribed in the notice to creditors is not exclusive; that money claims against the estate may be allowed any time before an order of distribution is entered, at the discretion of the court for cause and upon such terms as are equitable.

RULE 91- ESCHEAT

SEC. 1. WHEN AND BY WHOM PETITION FILED. - WHEN A PERSON DIES INTESTATE, SEIZED OF REAL OR PERSONAL PROPERTY IN THE PHILIPPINES, LEAVING NO HEIR OR PERSON BY LAW ENTITLED TO THE SAME, THE SOLICITOR GENERAL OR HIS REPRESENTATIVE IN BEHALF OF THE REPUBLIC OF THE PHILIPPINES, MAY FILE A PETITION IN THE COURT OF FIRST INSTANCE OF THE PROVINCE WHERE THE DECEASED LAST RESIDED OR IN WHICH HE HAD ESTATE, IF HE RESIDED OUT OF THE PHILIPPINES, SETTING FORTH THE FACTS, AND PRAYING THAT THE ESTATE OF THE DECEASED BE DECLARED ESCHEATED.

DEFINE ESCHEAT. It is a proceeding whereby the real and personal property of a deceased person become the property of the State upon his death without leaving a will or legal heirs. It is not an ordinary action, but a special proceeding, and commenced by petition and not by complaint.

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”.

GUARDIANSHIP

ADMINISTRATIVE CIRCULAR N0. 03-02-05-SC OTHERWISE KNOWN AS “THE RULE ON GUARDIANSHIP OF MINORS.” This Rule which took effect on May 1, 2003, governs guardianship of minors. (Rules 92 to 97 of the Rules of Court no longer apply to guardianship of minors).

DEFINE GUARDIANSHIP. It is a trust relation of the most sacred character, in which one person, called a “guardian” acts for another called the “ward” whom the law regards as incapable of managing his own affairs. A guardianship is designed to further the ward’s well-being not that of the guardian. It is intended to preserve the ward’s property, as well as to render any assistance that the ward may personally require.

WHICH COURT HAS JURISDICTION OVER GUARDIANSHIP PROCEEDINGS? In guardianship proceedings involving incompetents who are not minors, the Regional Trial Court where he resides has jurisdiction pursuant to the provisions of Batas Pambansa Blg. 129 as amended. In guardianship of minors, it is the Family Court where the minor resides.

WHERE IS THE VENUE OF GUARDIANSHIP CASES? Venue is the place of residence of the minor or incompetent person. However, if the minor or incompetent resides outside the Philippines (non- resident), the petition may be filed in the Regional Trial Court of the place where the property of such minor or incompetent may be situated.

A guardian, just like a trustee, is prohibited under Art. 736 of the Civil Code from making a donation of the properties entrusted to him.

An order removing a guardian is an order constituting a final determination of his rights and consequently said guardian may appeal therefrom.

ADOPTION

ADOPTION STATUTES LIBERALLY CONSTRUED. The main purpose of adoption is the promotion of the welfare of children. Accordingly, the law should be liberally construed in a manner that will sustain rather than defeat said purpose. The law should also be applied with compassion, understanding and less severity in view of the fact that it is intended to provide homes, love, care and education for less fortunate children. Republic vs. Vergara, 270 SCRA 206.

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WHICH COURT HAS JURISDICTION ? According to Section 6 of the Rules of Adoption, the petition for adoption shall be filed with the Family Court of the province or city where the prospective adoptive parents reside.

WHICH COURT HAS JURISDICTION AND VENUE OVER INTER-COUNTRY ADOPTION? According to Section 28 of the Rules of Adoption, a verified petition to adopt a Filipino child may be filed by a foreign national or Filipino citizen permanently residing abroad with the Family Court having jurisdiction over the place where the child resides or may be found. It may be filed directly with the Inter-Country Adoption Board.

COMPARE VENUE OF ADOPTION PROCEEDINGS FROM GUARDIANSHIP PROCEEDINGS. In [domestic] adoption proceedings, venue is laid in the residence of the petitioner or the adopter whereas in guardianship, it is filed before the Regional Trial Court of the place where the minor or incompetent resides.

DEFINE INTER-COUNTRY ADOPTION. According to the Inter-Country Adoption Act of 1995, it is a 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.

COMPARE DOMESTIC ADOPTION FROM INTER-COUNTRY ADOPTION. The following are the comparison between domestic adoption and inter-country adoption, to wit: 1. In domestic adoption, jurisdiction is under the Family Court where the adopter resides while in the inter-country adoption, it is the Family Court having jurisdiction over the place where the child resides or may be found. It may be filed directly with the Inter-Country Adoption Board; 2. In domestic adoption, application is made by filing a petition with the Family Court in the Philippines while in inter-country adoption, application may be through the agency located in the foreign country; 3. In domestic adoption, as a rule, trial custody shall be made in the Philippines for six (6) months while in inter-country adoption, trial custody shall be mandatory in the country of the adopter; 4. In domestic adoption, publication of the petition is necessary while in inter-country adoption, there is no requirement for publication; 5. In domestic adoption, petition is allowed to be accompanied with prayers for change of name, rectification of simulated birth or declaration that the child is a foundling, abandoned dependent or neglected child while in inter-country adoption, there is none;

CAN AN ADOPTER RESCIND A DECREE OF ADOPTION? 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.

MAY A PERSON WHO HAS REMARRIED WHEN THE PETITION FOR ADOPTION WAS FILED SINGLY ADOPT?

No. Section 7, Article III of RA 8552 provides that a 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.

The use of the word "shall" in the above-quoted provision means that joint adoption by the husband and the wife is mandatory. This is in consonance with the concept of joint parental authority over the child which is the ideal situation. As the child to be adopted is elevated to the level of a legitimate child, it is but natural to require the spouses to adopt jointly. The rule also insures harmony between the spouses. IN RE: PETITION FOR ADOPTION OF MICHELLE AND MICHAEL LIM, MONINA P. LIM, Petitioner, G.R. 168992-93, May 21, 2009.

RULE 102- HABEAS CORPUS

SEC.1. TO WHAT HABEAS CORPUS EXTENDS. -Eexcept as otherwise expressly provided by law, the writ of habeas corpus shall extend to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto.

EXPLAIN THE CONCEPT OF RESTRAINT. Actual and effective, and not merely nominal or moral, restraint is required. However, actual physical restraint is not always required; any restraint which will prejudice freedom of action is sufficient. It is more than mere moral restraint; In fact, the law requires actual or physical confinement. However, the fact that no physical force was exerted to keep a person does not make less real the deprivation of his personal freedom which includes the freedom of movement, freedom to transfer from one place to another and freedom to choose one’s residence.

DEFINE THE WRIT OF HABEAS CORPUS. It is a writ directed to the person detaining another and commanding him to produce the body of the prisoner at a certain time and place, with the day and the cause of his caption and detention, to do, and receive whatsoever the court or judge

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awarding the writ shall consider in that behalf . Bouvier’s Law Dictionary

DISCUSS THE NATURE OF THE PETITION FOR HABEAS CORPUS. Habeas corpus is not in the nature of a writ of error; nor intended as substitute for the trial court’s function.

1. It cannot take the place of appeal, certiorari or writ of error.

2. The writ cannot be used to investigate and consider questions of error that might be raised relating to procedure or on the merits.

3. The inquiry in a habeas corpus proceeding is addressed to the question of whether the proceedings and the assailed order are, for any reason, null and void.

4. The writ is not ordinarily granted where the law provides for other remedies in the regular course, and in the absence of exceptional circumstances.

MAY A WIFE SECURE A WRIT OF HABEAS CORPUS TO COMPEL HER HUSBAND TO LIVE WITH HER IN CONJUGAL BLISS? The answer is no. Marital rights including coverture and living in conjugal dwelling may not be enforced by the extra-ordinary writ of habeas corpus. To justify the grant of the petition, the restraint of liberty must be an illegal and involuntary deprivation of freedom of action. The illegal restraint of liberty must be actual and effective, not merely nominal or moral.

CAN A WRIT OF HABEAS CORPUS BE ISSUED IF THE DETENTION IS BY VIRTUE OF VALID JUDGMENT? No. The writ may not be availed of when the person in custody is under a judicial process or by virtue of a valid judgment. However, the writ may be allowed as a post-conviction remedy when the proceedings leading to the conviction were attended by any of the following exceptional circumstances: 1. there was a deprivation of a constitutional right resulting in the restraint of a person; 2. the court had no jurisdiction to impose the sentence or 3. the imposed penalty was excessive, thus voiding the sentence as to such excess.

RECENT CASES:

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF MINOR SHANG KO VINGSON YU SHIRLY VINGSON@

SHIRLY VINGSON DEMAISIP, vs. JOVY CABCABAN, UDK No. 14817 JANUARY 13, 2014

SC RULING:

Under Section 1, Rule 102 of the Rules of Court, the writ of habeas corpus is available not only in cases of illegal confinement or detention by which any person is deprived of his liberty, but also in cases involving the rightful custody over a minor. The general rule is that parents should have custody over their minor children but the State has the right to intervene where the parents treat them cruelly and abusively, impairing their growth and well-being, and leaving them emotional scars that they carry throughout their lives unless they are liberated from such parents and properly counseled.

THE WRIT OF AMPARO

A. DIAGRAM: DISTINCTIONS OF WRITS OF HABEAS CORPUS, AMPARO AND DATA:

WRIT OF HABEAS CORPUS

AMPARO HABEAS DATA

LEGAL BASIS

The Rule was drafted pursuant to the Supreme Court’s constitutional power to promulgate rules for the protection and enforcement of constitutional rights (Constitution, Art. VIII, Sec. 5[5]).

Same Same

GOVERNING LAW

Rule 102 A.M. No. 07-9-12-SC

A.M. No. 08-1-16-SC

DEFINITION

“Habeas corpus” is a Latin phrase which literally means “you have the body”. Basically, it is a writ directed to the person detaining another, commanding him to produce the body of the prisoner at a designated time and place, with the day and cause of his capture and detention, to do, submit to, and receive whatsoever the court or judge awarding the writ shall consider in that behalf.

It is a remedy available to any person whose right to life, liberty, and security has been violated or is threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity. The writ covers extralegal killings and enforced disappearances or threats thereof.

It is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party.

REMEDY FOR

Sec 1 To all cases of illegal confinement or detention: 1. By which any person is deprived of his liberty; or 2. By which the rightful custody of any person is withheld from the person entitled thereto

Sec 1 To any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity

Sec 1 To any person whose right to privacy in life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in: 1. Gathering 2. Collecting 3. Storing of data or information regarding the person family, home and correspondence of the aggrieved party.

EFFECTIVI-TY

The Rule took effect on 1 July 1997

The Rule took effect on 24 October 2007

The Rule took effect on 2 February 2008

PETITION-ER

Sec 3 By the party for whose relief it is intended, or by some other person in his behalf

Sec 2 By the aggrieved party, or by any qualified person or entity in the order provided in Sec. 2

Sec 2 General rule: The aggrieved party Except: In cases of extralegal killings and enforced disappearances: 1. Immediate family; 2. In default of no.1, ascendant, descendant or collateral relative within the 4th civil degree of consanguinity or affinity.

VENUE Rule 4 Sec 2 Where the plaintiff resides or where the defendant resides, or in the case of non-resident defendant, where he may be found, at the election of the plaintiff.

Sec 3 SC, CA and SB: Manila; RTC of the place where the threat, act or omission was committed or any of its elements occurred

Sec 3 SC, CA and SB: Manila; RTC: 1. where the petitioner resides; 2. where the respondent resides 3. which has jurisdiction over the place where data or information is gathered etc. All at the option of the petitioner

EXTENT OF ENFORC

SC CA and SB: anywhere in the Philippines

Anywhere in the Philippines

Anywhere in the Philippines

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E-ABILITY

RTC: only within its judicial district

INTERIM RELIEFS

Sec 12 1. Unless for good cause shown, the hearing is adjourned, in which event the court shall make an order for the safe keeping of the person imprisoned or restrained as the nature of the case requires; 2. The court or judge must be satisfied that the person’s illness is so grave that he cannot be produced without any danger.

Sec 14 (a) Temporary Protection Order. – The court, justice or judge, upon motion or motu proprio, may order that the petitioner or the aggrieved party and any member of the immediate family be protected in a government agency or by an accredited person or private institution capable of keeping and securing their safety. If the petitioner is an organization, association or institution referred to in Section 3(c) of this Rule, the protection may be extended to the officers involved. (b) Inspection Order. — The court, justice or judge, upon verified motion and after due hearing, may order any person in possession or control of a designated land or other property, to permit entry for the purpose of inspecting, measuring, surveying, or photographing the property or any relevant object or operation thereon. (c) Production Order. – The court, justice or judge, upon verified motion and after due hearing, may order any person in possession, custody or control of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, or objects in digitized or electronic form, which constitute or contain evidence relevant to the petition or the return, to produce and permit their inspection, copying or photographing by or on behalf of the movant.

(d)Witness Protection Order.

The Amparo Rule was intended to address the intractable problem of "extralegal killings" and "enforced disappearances".

DEFINITION OF “EXTRALEGAL KILLINGS”. "Extralegal killings" are killings committed without due process of law, i.e., without legal safeguards or judicial proceedings.

DEFINITION OF "ENFORCED DISAPPEARANCES". They are "attended by the following characteristics: an arrest, detention or abduction of a person by a government official or organized groups or private individuals acting with the direct or indirect acquiescence of the government; the refusal of the State to disclose the fate or whereabouts of the person concerned or a refusal to acknowledge the deprivation of liberty which places such persons outside the protection of the law.

KINDS OF WRIT OF AMPARO.

(1) AMPARO LIBERTAD for the protection of personal freedom, equivalent to the habeas corpus writ;

(2) AMPARO CONTRA LEYES for the judicial review of the constitutionality of statutes; (3) AMPARO CASACION for the judicial review of the constitutionality and legality of a judicial decision; (4) AMPARO ADMINISTRATIVO for the judicial review of administrative actions; and (5) AMPARO AGRARIO for the protection of peasants' rights derived from the agrarian reform process.

WHEN IS WRIT OF AMPARO NOT PROPER?

Petitioners’ claim to their dwelling, assuming they still have any despite the final and executory judgment adverse to them, does not constitute right to life, liberty and security; There is, therefore, no legal basis for the issuance of the writ of amparo.

The threatened demolition of a dwelling by virtue of a final order of the court, which in this case was affirmed with finality by this Court in G.R. Nos. 177448, 180768, 177701, 177038 is not included among the enumeration of rights stated in Section 1 for which the remedy of a writ of amparo is made available.

Evidently, the present controversy arose out of a property dispute between the Provincial Government and respondents. Oddly, respondents also seek the issuance of a writ of habeas data when it is not even alleged that petitioners are gathering, collecting or storing data or information regarding their person, family, home and correspondence.

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Thus, the petition of petitioner is granted. The order of the court in granting the writ of amparo and writ of habeas data is declared NULL and VOID.

The restriction on petitioner's right to travel as a consequence of the pendency of the criminal case filed against him was not unlawful. Petitioner also failed to establish that his right to travel was impaired in the manner and to the extent that it amounted to a serious violation of his right to life, liberty, and security, for which there exists no readily available legal recourse or remedy. REVEREND FATHER ROBERT P. REYES, PETITIONER, - VERSUS - COURT OF APPEALS, G. R. NO. 182161; DECEMBER 3, 2009

MAY THE PRINCIPLE OF “COMMAND RESPONSIBILITY” BE INVOKED IN AMPARO PROCEEDINGS TO DETERMINE CRIMINAL LIABILITY? Writ of Amparo does not determine criminal guilt requiring proof beyond reasonable doubt. It only determines responsibility or at least accountability for the missing person. DEFINE THE WRIT OF HABEAS DATA. It is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party.

RECENT CASES:

BURGOS, Petitioner, vs. GEN. HERMOGENES ESPERON, JR., ET.AL, Respondents.

G.R. No. 178497 February 4, 2014 SC RULING:

The Court emphasized that its ROLE in a Writ of Amparo proceeding is merely to determine whether or not an enforced disappearance has taken place; to determine who is responsible or accountable; and to define and impose the appropriate remedies to address the disappearance.

The beneficial purpose of the Writ of Amparo has been served in the present case with the CA’s final determination of the persons responsible and accountable for the enforced disappearance of Jonas and the commencement of criminal action against Lt. Baliaga. At this stage, criminal investigation and prosecution proceedings are already beyond the reach of the Writ of Amparo proceeding now before the Court.

The Court held that the full extent of the remedies envisioned by the Rule on the Writ of Amparo has been served and exhausted.

INFANT JULIAN YUSAY CARAM vs. ATTY. MARIJOY D. SEGUI, ATTY. SALLY D. ESCUTIN,

ET. AL, Respondents. G.R. No. 193652 AUGUST 05, 2014

SC RULING:

Section 1 of the Rule on the Writ of Amparo provides as follows:

SECTION 1. Petition. – The petition for a writ of amparo is a remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private imdividual or entity. The writ shall cover extralegal killings and enforced

disappearances or threats thereof. In the landmark case of Secretary of National Defense, et al. v. Manalo, et al., this Court held that:

This pronouncement on the coverage of the writ was further cemented in the latter case of Lozada, Jr. v. Macapagal-Arroyo where the Court explicitly declared that as it stands, the writ of amparo is confined only to cases of extrajudicial killings and enforced disappearances, or to threats thereof. As to what constitutes “enforced disappearance,” the Court in Navia v. Pardico enumerated the elements constituting “enforced disappearances” as the term is statutorily defined in Section 3(g) of R.A. No. 9851 to wit: (a) that there be an arrest, detention, abduction or any form of

deprivation of liberty; (b) that it be carried out by, or with the authorization, support

or acquiescence of, the State or a political organization; (c) that it be followed by the State or political organization’s

refusal to acknowledge or give information on the fate or whereabouts of the person subject of the amparo petition; and,

(d) that the intention for such refusal is to remove subject person from the protection of the law for a prolonged period of time.

In this case, Christina alleged that the respondent

DSWD officers caused her “enforced separation” from Baby Julian and that their action amounted to an “enforced disappearance” within the context of the Amparo rule. Contrary to her position, however, the respondent DSWD officers never concealed Baby Julian’s whereabouts. In fact, Christina obtained a copy of the DSWD’s May 28, 2010 Memorandum explicitly stating that Baby Julian was in the custody of the Medina Spouses when she filed her petition before the RTC. Besides, she even admitted in her petition for review on certiorari that the respondent DSWD officers presented Baby Julian before the RTC during the hearing held in the afternoon of August 5, 2010. There is, therefore, no “enforced disappearance” as used in the context of the Amparo rule as the third and fourth elements are missing.

Christina’s directly accusing the respondents of

forcibly separating her from her child and placing the latter up for adoption, supposedly without complying with the necessary legal requisites to qualify the child for adoption, clearly indicates that she is not searching for a lost child but asserting her parental authority over the child and contesting custody over him.

Since it is extant from the pleadings filed that what

is involved is the issue of child custody and the exercise of parental rights over a child, who, for all intents and purposes, has been legally considered a ward of the State, the Amparo rule cannot be properly applied. To reiterate, the privilege of the Writ of Amparo is a remedy available to victims of extra-judicial killings and enforced disappearances or threats of a similar nature, regardless of whether the perpetrator of the unlawful act or omission is a public official or employee or a private individual. It is envisioned basically to protect and guarantee the right to life, liberty and security of persons, free from fears and threats that vitiate the quality of life.

A. DISTINGUSH RULE 103 FROM RULE 108 AND R.A. 9048:

Rule 103 Rule 108 R.A. 9048

Name of Law

Change of Name

Cancellation/Correction of Entries in the Civil Registry

Clerical Error Act

Subject Matter

Change of full name (substantial corrections)

Change or corrections in the civil entries (substantial corrections)

Change of first name and nickname and civil entries (only

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typographical or clerical errors)

Who may File A person desiring to change his name. (Section 1)

Any person interested in any act, event, order or decree concerning the civil status of persons which has been recorded in the civil register. (Section 1)

Any person having direct and personal interest in the correction of a clerical or typographical error in an entry and/or change of first name or nickname. (Section 3)

Venue RTC of the province in which petitioner resides for 3 years prior to filing, or, in the City of Manila, to the Juvenile and Domestic Relations Court.

RTC of city or province where the corresponding civil registry is located

1. Local civil registry office of the city or municipality where the record being sought to be corrected or changed is kept; 2. Local civil registrar of the place where the interested party is presently residing or domiciled; 3. Philippine Consulates;

What kind of proceeding:

Judicial Proceeding

Summary proceeding This can be concerted to an adversarial proceeding if there are substantial changes and affect the status of an individual

Administrative Proceeding

CITE VALID GROUNDS FOR CHANGE OF NAME UNDER RULE 103.

Among the grounds for change of name which have been held valid are:

(a) when the name is ridiculous, dishonorable or extremely difficult to write or pronounce;

(b) when the change results as a legal consequence, as in legitimation;

(c) when the change will avoid confusion;

(d) when one has continuously used and been known since childhood by a Filipino name, and was unaware of alien parentage;

(e) a sincere desire to adopt a Filipino name to erase signs of former alienage, all in good faith and without prejudicing anybody; and

(f) when the surname causes embarrassment and there is no showing that the desired change of name was for a fraudulent purpose or that the change of name would prejudice public interest. In re: Petition for change of name and/or correction/cancellation of entry in civil registry of Julian Lin Carulasan Wang also known as Julian Lin Wang, to be amended/corrected as Julian Lin Wang, vs. Cebu City Civil Registrar, G.R. no. 159966 March 30, 2005.

RULE 108. CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY

WHO MAY FILE PETITION. - Any person interested in any act, event, order or decree concerning the civil status of persons which has been recorded in the civil register.

WHAT COURT HAS JURISDICTION? The verified petition must be filed before the Regional Trial Court where the corresponding civil registry is located.

R.A. No. 9048 does not cover clerical error on surname. Where the entry to be corrected is that of a surname, even if the error is merely clerical and will not affect the status, citizenship, or filiation of the person, it must be done judicially.

MAY A PETITION FOR THE CORRECTION OR CHANGE OF ENTRIES IN ONE’S BIRTH CERTIFICATE BE GRANTED BY REASON OF “SEX CHANGE”? To correct simply means “to make or set a right; to remove the faults or error from” while to change means “to replace something with something else of the same kind or with something that serves as a substitute.” The birth certificate of petitioner contained no error. All entries therein, including those corresponding to his first name and sex, were all correct. No correction is necessary. 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 post-operative male-to-female transsexual to be included in the category “female.”Thus, there is no legal basis for his petition for the correction or change of the entries in his birth certificate. ROMMEL JACINTO DANTES SILVERIO vs. REPUBLIC OF THE PHILIPPINES under G.R. No. 174689 October 22, 2007.

WHAT IS CONGENITAL ADRENAL HYPERPLASIA (CAH)? This condition causes the early or "inappropriate" appearance of male characteristics. A person, like respondent, with this condition produces too much androgen, a male hormone.

WHAT ARE THE PRINCIPLES LAID DOWN BY THE SUPREME COURT IN THE CASE OF REPUBLIC VS. CAGANDAHAN?

The principles are the following:

1. Where the person is biologically or naturally intersex, the determining factor in his gender classification would be what the individual, having reached the age of majority, with good reason thinks of his/her sex; 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. 2. To the person with Congenital Adrenal Hyperplasia (CAH) belongs the human right to the pursuit of happiness and of health, and to him should belong the primordial choice of what courses of action to take along the path of his sexual development and maturation. 3. There is merit in the change of name of a person with Congenital Adrenal Hyperplasia (CAH) where the same is the consequence of the recognition of his preferred gender.

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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. 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.

UNDER R.A. NO. 9048 OR THE CLERICAL ERROR ACT, WHAT ARE THE GROUNDS ENUMERATED FOR CHANGE OF FIRST NAME OR NICKNAME?

Under Sec. 4 of the said law, 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 the first name or nickname in the community; or (3) The change will avoid confusion.

RECENT CASES:

REPUBLIC OF THE PHILIPPINES, Petitioner, vs. MERLINDA

L. OLAYBAR, Respondent

G.R. No. 189538. FEBRUARY 10, 2014

SC RULING:

The issue raised by petitioner is whether or not the

cancellation of entries in the marriage contract which, in effect,

nullifies the marriage may be undertaken in a Rule 108

proceeding. Verily, petitioner raised a pure question of law.

Rule 108 of the Rules of Court provides the

procedure for cancellation or correction of entries in the civil

registry. The proceedings may either be summary or

adversary. If the correction is clerical, then the procedure to be

adopted is summary. If the rectification affects the civil status,

citizenship or nationality of a party, it is deemed substantial,

and the procedure to be adopted is adversary. Since the

promulgation of Republic v. Valencia in 1986, the Court has

repeatedly ruled that "even substantial errors in a civil registry

may be corrected through a petition filed under Rule 108, with

the true facts established and the parties aggrieved by the

error availing themselves of the appropriate adversarial

proceeding." An appropriate adversary suit or proceeding is

one where the trial court has conducted proceedings where all

relevant facts have been fully and properly developed, where

opposing counsel have been given opportunity to demolish the

opposite party's case, and where the evidence has been

thoroughly weighed and considered.

In this case, the entries made in the wife portion of

the certificate of marriage are admittedly the personal

circumstances of respondent. The latter, however, claims that

her signature was forged and she was not the one who

contracted marriage with the purported husband. In other

words, she claims that no such marriage was entered into or if

there was, she was not the one who entered into such contract.

It must be recalled that when respondent tried to obtain a

CENOMAR from the NSO, it appeared that she was married to a

certain Ye Son Sune. She then sought the cancellation of entries

in the wife portion of the marriage certificate.

In filing the petition for correction of entry under

Rule 108, respondent made the Local Civil Registrar of Cebu

City, as well as her alleged husband Ye Son Sune, as parties-

respondents. It is likewise undisputed that the procedural

requirements set forth in Rule 108 were complied with. The

Office of the Solicitor General was likewise notified of the

petition which, in turn, authorized the Office of the City

Prosecutor to participate in the proceedings. More importantly,

trial was conducted where respondent herself, the

stenographer of the court where the alleged marriage was

conducted, as well as a document examiner, testified. Several

documents were also considered as evidence. With the

testimonies and other evidence presented, the trial court found

that the signature appearing in the subject marriage certificate

was different from respondent's signature appearing in some

of her government issued identification cards. The court thus

made a categorical conclusion that respondent's signature in

the marriage certificate was not hers and, therefore, was

forged. Clearly, it was established that, as she claimed in her

petition, no such marriage was celebrated.

Indeed, the Court made a pronouncement in the

recent case of Minoru Fujiki v. Maria Paz Galela Marinay,

Shinichi Maekara, Local Civil Registrar of Quezon City, and the

Administrator and Civil Registrar General of the National

Statistics Office 24 that:

To be sure, a petition for correction or cancellation

of an entry in the civil registry cannot substitute for an action

to invalidate a marriage. A direct action is necessary to prevent

circumvention of the substantive and procedural safeguards of

marriage under the Family Code, A.M. No. 02-11-10-SC and

other related laws. Among these safeguards are the

requirement of proving the limited grounds for the dissolution

of marriage, support pendente lite of the spouses and children,

the liquidation, partition and distribution of the properties of

the spouses and the investigation of the public prosecutor to

determine collusion. A direct action for declaration of nullity or

annulment of marriage is also necessary to prevent

circumvention of the jurisdiction of the Family Courts under

the Family Courts Act of 1997 (Republic Act No. 8369), as a

petition for cancellation or correction of entries in the civil

registry may be filed in the Regional Trial Court where the

corresponding civil registry is located. In other words, a

Filipino citizen cannot dissolve his marriage by the mere

expedient of changing his entry of marriage in the civil registry.

Aside from the certificate of marriage, no such

evidence was presented to show the existence of marriage.

Rather, respondent showed by overwhelming evidence that no

marriage was entered into and that she was not even aware of

such existence. The testimonial and documentary evidence

clearly established that the only "evidence" of marriage which

is the marriage certificate was a forgery. While the Court

maintain that Rule 108 cannot be availed of to determine

the validity of marriage, the Court cannot nullify the

proceedings before the trial court where all the parties

had been given the opportunity to contest the allegations

of respondent; the procedures were followed, and all the

evidence of the parties had already been admitted and

examined. Respondent indeed sought, not the nullification

of marriage as there was no marriage to speak of, but the

correction of the record of such marriage to reflect the

truth as set forth by the evidence. Otherwise stated, in

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allowing the correction of the subject certificate of

marriage by cancelling the wife portion thereof, the trial

court did not, in any way, declare the marriage void as

there was no marriage to speak of.

AMENDMENTS INTRODUCED BY R.A. 10172.

WHAT ARE THE ENTRIES IN THE BIRTH CERTIFICATE THAT CAN BE CORRECTED? 1. clerical or typographical errors and change of first name or nickname; and 2. day and month in the date of birth or sex of a person where it is patently clear that there was a clerical or typographical error or mistake in the entry. DEFINE CLERICAL OR TYPHOGRAPHICAL ERROR”. “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, mistake in the entry of day and month in the date of birth or the sex of the person 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. WHAT ARE THE ENTRIES IN THE BIRTH CERTIFICATE THAT CANNOT BE CHANGED? (SEC. 2 (3), R.A. NO. 10172) 1. nationality; 2. age; or 3. status of the petitioner. WHAT ARE THE REQUIREMENTS FOR CORRECTION OF CLERICAL OR TYPHOGRAPHICAL ERROR? (SEC.5, R.A. NO. 10172)

-The petition for correction of a clerical or typographical error, or for change of first name or nickname, as the case may be, shall be in the form of an affidavit, subscribed and sworn to before any person authorized by law to administer oaths. the affidavit shall set forth facts necessary to establish the merits of the petition and shall show affirmatively that the petitioner is competent to testify to the matters stated. The petitioner shall state the particular erroneous entry or entries, which are sought to be corrected and/or the change sought to be made.

The petition shall be supported with the following documents:

(1) a certified true machine copy of the certificate or of the page of the registry book containing the entry or entries sought to be corrected or changed; (2) at least two (2) public or private documents showing the correct entry or entries upon which the correction or change shall be based;

and (3) other documents which the petitioner or the city or municipal civil registrar or the consul general may consider relevant and necessary for the approval of the petition. WHAT ARE THE REQUIREMENTS FOR CORRECTION OF DATE OF BIRTH OR THE SEX OF THE PERSON? (SEC.5, R.A. NO. 10172)

No petition for correction of erroneous entry concerning the date of birth or the sex of a person shall be entertained except:

1. if the petition is accompanied by earliest school record or earliest school documents such as, but not limited to, medical records, baptismal certificate and other documents issued by religious authorities; and 2. in case of change of gender, the petition is accompanied by a certification issued by an accredited government physician attesting to the fact that the petitioner has not undergone sex change or sex transplant.

The petition for change of first name or nickname, or for correction of erroneous entry concerning the day and month in the date of birth or the sex of a person, as the case may be, shall be published at least once a week for two (2) consecutive weeks in a newspaper of general circulation.

Furthermore, the petitioner shall submit a certification from the appropriate law enforcements, agencies that he has no pending case or no criminal record.

The petition and its supporting papers shall be filed in three (3) copies to be distributed as follows: first copy to the concerned city or municipal civil registrar, or the consul general; second copy to the office of the civil registrar general; and third copy to the petitioner.”

RULE 109 APPEALS IN SPECIAL PROCEEDINGS

WHO MAY APPEAL? An interested person may

appeal in special proceedings from an order or

judgment rendered by the court. The interest of

the person must be material and direct, not

merely indirect or contingent. Unless the party has

such material and direct interest, he is precluded

from appealing an order or judgment of the court.

RECENT CASES:

ARANAS, Petitioner, vs. MERCADO, ET. AL, Respondents.

G.R. No. 156407 JANUARY 15, 2014.

Multiple appeals are permitted in special

proceedings as a practical recognition of the possibility that material issues may be finally determined at various stages of the special proceedings. Section 1, Rule 109 of the Rules of

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Court enumerates the specific instances in which multiple appeals may be resorted to in special proceedings, viz.: Section 1. Orders or judgments from which appeals may be taken. — An interested person may appeal in special proceedings from an order or judgment rendered by a Court of First Instance or a Juvenile and Domestic Relations Court, where such order or judgment: (a) Allows or disallows a will; (b) Determines who are the lawful heirs of a deceased person, or the distributive share of the estate to which such person is entitled; (c) Allows or disallows, in whole or in part, any claim against the estate of a deceased person, or any claim presented on behalf of the estate in offset to a claim against it; (d) Settles the account of an executor, administrator, trustee or guardian; (e) Constitutes, in proceedings relating to the settlement of the estate of a deceased person, or the administration of a trustee or guardian, a final determination in the lower court of the rights of the party appealing, except that no appeal shall be allowed from the appointment of a special administrator; and (f) Is the final order or judgment rendered in the case, and affects the substantial rights of the person appealing, unless it be an order granting or denying a motion for a new trial or for reconsideration.

Clearly, the assailed orders of the RTC, being interlocutory, did not come under any of the instances in which multiple appeals are permitted.

“I CAN DO ALL THINGS THRU CHRIST WHO GIVES ME STRENGTH.”