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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 DECEDENTS 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 decedents 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 decedents 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 Portugals 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 decedents 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 wards well-being not that
of the guardian. It is intended to preserve the
wards 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 ones 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
7 | 13

awarding the writ shall consider in that behalf .
Bouviers 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 courts 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 Courts
constitutional
power to
promulgate
rules for the
protection and
enforcement of
constitutional
rights
(Constitution,
Art. VIII, Sec.
5[5]).
Same Same
GOVERNI
NG LAW
Rule 102 A.M. No.
07-9-12-SC
A.M. No. 08-1-16-SC
DEFINITI
ON
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
disappeara
nces 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.
EFFECTI
VI-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
PETITIO
N-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 4
th
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
8 | 13

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
persons 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.
9 | 13

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 CAs 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 organizations
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 Julians whereabouts. In fact,
Christina obtained a copy of the DSWDs 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.

Christinas 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
10 | 13

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 ONES 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.
11 | 13

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
12 | 13

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
13 | 13

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.


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