Professional Documents
Culture Documents
SPECIAL PROCEEDINGS
Nimfa Cuesta Vilches
I. INTRODUCTION
A. DEFINITION
It is distinguished from an ordinary civil action where a party sues another for
the enforcement or protection of a right, or the prevention or redress of a wrong.2
Hence, a special proceeding is initiated by petition, not by complaint.
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b) Proceedings for protection orders under the Violence Against Women and
Their Children Act25
10
RULES OF COURT, Rule 101.
11
Id., Rule 102.
12
Id., Rule 103; Republic Act No. 9255 [2004].
13
Now governed by Rep. Act No. 8799, or the Securities Regulation Code of 2000.
14
RULES OF COURT, Rule 105.
15
Rendered repealed by the Family Code which provides for an automatic constitution of the family
home.
16
RULES OF COURT, Rule 107.
17
Id., Rule 108; Rep. Act No. 9048 [2001]
18
RULES OF COURT, Rule 109.
19
Rep. Act No. 8369 [1997].
20
A.M. 02-11-10-SC March 15, 2003.
21
A.M. 20-11-11-SC, March 15, 2003.
22
A.M. 02-11-12-SC, March 15, 2003.
23
A.M. 03-04-04-SC, April 22, 2003.
24
CIVIL CODE, Arts. 238-253.
25
Rep. Act No. 9262 [2004].
26
A.M. 04-10-11, October 19, 2004.
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27
Rep. Act No. 876 [1953].
28
Rep. Act No. 9285 [2004].
29
A.M. 01-10-5-SC-PHILJA, October 16, 2001.
30
A.M. 10-4-16-SC, June 22, 2010; Please refer to the Chapter on Alternative Dispute Resolution.
31
A.M. 07-9-12-SC, October 16, 2007.
32
A.M. 08-1-16-SC, February 2, 2008.
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A. DEFINITION
In a petition for settlement of estate, the applicants seek to establish the fact of
death of the decedent and to be duly recognized as among the heirs to be able to
participate in the settlement and liquidation of the estate.33 Where the deceased left
a will, the proceeding is testate and if no will was left, the proceeding is intestate.
Settlement of estate proceeding is subject to mediation.34
33
Montaner v. Shari’a District Court, et.al., G.R. No. 1744975, January 20, 2009, 576 SCRA 746.
34
A.M. 10-4-16-SC, Rule1, June 22, 2010.
35
Rep. Act No. 7691 [1994], amending Batas Pambansa Blg. 129.
36
Id.
37
Presidential Decree No. 1083, Art. 143(b).
38
Ramos v. Court of Appeals, G.R. No. 42108, December 29, 1989, 180 SCRA 635.
39
Vda. De Rodriguez v. Court of Appeals, G.R. No. L-39532, July 20, 1979, 91 SCRA 540.
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formalities prescribed by law.40 However, in one case, the Supreme Court held
that although generally, a probate court may not decide a question of title or
ownership, yet if the interested parties are all heirs, or the question is one of
collation or advancement, or the parties consent to the assumption of jurisdiction
by the probate court and the rights of third parties are not impaired, the probate
court is competent to decide the question of ownership.41
By way of exception to the abovementioned rule, “when the parties are all
heirs of the decedent, it is optional upon them to submit to the probate court the
question of title to property.”42
C. JURISPRUDENCE
1. Probate court cannot act on rights to property arising from contract nor
proceed to the probate of will that preterited a compulsory heir. In a relevant
case, the Supreme Court found that the probate court may act on matters
pertaining to the estate but not on the rights to property arising from a contract. 44
In addition, during the hearing, the probate court shall not go through the probate
of a will that preterited a compulsory heir since preterition invalidates the will.45
40
Nittscher v. Nittscher, G.R. No.160530, November 20, 2007, 537 SCRA 681.
41
Reyes v. Regional Trial Court of Makati, et.al., G.R. No. 165744, August 11, 2008, 561 SCRA 593.
42
Cortez v. Court of Apeals, G.R. No. 117417, September 21, 2000, 340 SCRA 715.
43
Supra note 33.
44
Supra note 38.
45
Nuguid v. Nuguid, G.R. No. 23445, June 23, 1966, 17 SCRA 449.
46
Reyes-Mesugas v. Reyes, G.R. No. 174835, March 22, 2010.
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D. VENUE
Section 1, Rule 73, Rules of Court provides for the venue for settlement of
estate of a deceased person.
47
Montaner et.al., v. Shari’a District Court, G.R. No. 174974, January 20, 2009, 576 SCRA 746.
48
Puno v. Puno Enterprises, Inc., G.R. No. 177066, September 11, 2009, 599 SCRA 585.
49
Estate of Hilario Ruiz v. Court of Appeals, et.al., G.R. No. 118671, January 29, 1996, 252 SCRA 541.
50
Reyes v. Regional Trial Court of Makati, G.R. No. 165744, August 11, 2008, 561 SCRA 593.
51
RULES OF COURT, Rule 73, Sec. 1.
52
Id.
53
Id., Sec. 2.
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E. KINDS OF SETTLEMENT
54
Id., Rule 73.
55
Cuenco v. Court of Appeals, No. 24742, October 26, 1973, 53 SCRA 360.
56
Intestate Estate of Wolfson, G.R. No. L-28054, June 15, 1972, 45 SCRA 381.
57
Pilipinas Shell Petroleum Corporation v. Dumlao, G.R. No. 44888, February 7, 1992, 206 SCRA 40.
58
Supra note 38.
59
RULES OF COURT, Rule 74, Sec. 1.
60
Id., Sec. 2.
61
Id., Rule 69, Sec 13.
62
Id., Rules 75 to 90.
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63
Id., Rule 74, Sec. 1.
64
Id.
65
Id., Sec.3.
66
Supra note 38.
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3. Not good reasons to file for administration of estate. The following are not
good reasons to file for administration of estate: to avoid multiplicity of suits as
when a person seeking to be appointed as administrator is also asking for the
annulment of conveyance of a certain property; an existing dispute among the
heirs;70 and the appointment of the husband, a usufructuary forced heir of his
deceased wife, as judicial administrator for him to have legal capacity to appear
in the intestate proceedings of his wife's deceased mother as he may just adduce
proof of his being a forced heir in the intestate proceedings of the latter,71 are not
good reasons to justify judicial administration.
67
RULES OF COURT, Rule 74, Sec. 1.
68
Id.
69
Pereira v. Court of Appeals, G.R. No. 81147, June 20, 1989, 174 SCRA 154.
70
Supra note 38.
71
Utulo v. Pasion Vda. De Garcia, 66 Phil. 303.
72
Balalad v. Rublico, G.R. No. 160743, August 4, 2009, 595 SCRA 125.
73
Heirs of Arturo Reyes v. Beltran, G.R. No. 176474, November 27, 2008, 572 SCRA 211.
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prohibition applies only to parties who have taken part in the extrajudicial
settlement, not to third persons who had no participation in the proceedings.74
1. Will defined. A will is an act whereby a person is permitted, with all the
formalities prescribed by law, to control to a certain degree the disposition of the
estate and to take effect upon his death.78
74
Supra note 38.
75
Amerol vs. Bagumbaran, G.R. No. 33261, September 30, 1987, 154 SCRA 396; Marquez vs. Court of
Appeals, G.R. No. 125715, December 29, 1998, 300 SCRA 653.
76
Government Service Insurance System (GSIS) v. Santiago, G.R. No. 155206, October 28, 2003; 414
SCRA 563.
77
Samonte vs. Court of Appeals, G.R. No. 104223, July 12, 2001, 316 SCRA 173.
78
NEW CIVIL CODE, Art. 783.
79
Id., Art. 804.
80
Id., Art. 805
81
Id.
82
Id,; Aluad vs. Aluad, G.R. No. 176943, October 17, 2008, 569 SCRA 697.
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e) All the pages of the will shall be numbered correlatively in letters placed
on the upper part of each page;83
f) The attestation clause shall state the number of pages used and the
fact that the testator signed the will and every page thereof, or caused
some other person to write his name, under his express direction, in the
presence of the attesting witnesses, and that the latter witnessed and
signed the will and all the pages thereof in the presence of the testator
and of one another. If the attestation clause is in a language not known to
the witnesses, it shall be interpreted to them;84 and
g) The will must be acknowledged before a notary public by the testator
and the witnesses.85
h) In the case of a holographic will, it must be entirely written, dated, and
signed by the hand of the testator himself. It need not be witnessed.86
a) Within twenty (20) days from knowledge of the death of the testator,
the custodian of a will shall deliver the will to the court or to the executor
named in the will.90
b) The executor, on the other hand, has twenty (20) days from knowledge
of the death of the testator or knowledge of the fact that he is named
executor to submit the will to the court, unless the will has reached the
court already.91
83
NEW CIVIL CODE, Art. 805.
84
Id., Art. 805.
85
Id., Art. 806.
86
Id., Art. 810.
87
Id., Art. 838.
88
Id.,
89
RULES OF COURT, Rule 3, Sec. 16.
90
Id., Rule 75, Sec. 2.
91
Id., Sec. 3.
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5. Sanctions for Failure. A person who neglects any of the duties required
without excuse satisfactory to the court shall be fined and those having custody
of a will after the death of the testator who neglects without reasonable cause to
deliver the same, when ordered so to do, to the court having jurisdiction, may be
committed to prison and there kept until he delivers the will.92
6. Contents of petition. A petition for the allowance of will shall allege the
following:
a) jurisdictional facts;
1. that a person died leaving a will;
2. the testator at the time of death is a resident within the territorial
jurisdiction of the court; and
3. the testator is non-resident at the time of death but left property
within the territorial jurisdiction of the court.
b) names, ages, and residences of the heirs, legatees, and devisees of
the testator or decedent;
c) probable value and character of the property of the estate;
d) name of the person for whom letters are prayed; and,
e) if the will has not been delivered to the court, the name of the person
having custody of it.
7. Time to prove or contest the will. The court shall fix a time and place for
proving the will where all concerned may appear to contest the allowance
thereof.95
92
Id., Secs. 4 and 5; Uy v. Lee, G.R. No. 176831, January 15, 2010.
93
Id., Rule 75, Sec. 2 to 5.
94
RULES OF COURT, Rule 76, Sec. 2.
95
Id., Sec. 3.
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9. Persons entitled to notice. The persons entitled to notice are the heirs,
devisees and legatees, residing in the Philippines, notified by mail or personally.
The executor if not the petitioner, shall also be notified by mail or personally. The
mail shall be deposited in the post office with the postage prepaid at least twenty
(20) days before the hearing if the places of residence are known.99 Personal
service of copies of the notice at least ten (10) days before the day of the hearing
shall be equivalent to mailing. If the testator is the petitioner, only the
compulsory heirs are entitled to notice. Compulsory heirs under Art. 887 of the
New Civil Code are:
10. Proof required at the hearing for the probate of a will. At the hearing, the
proponent must first prove: (a) publication of the notice of hearing, and (b)
service of the notice of hearing, to all known heirs, legatees and devisees, and to
the executor, if he is not the petitioner.101
96
Id.,
97
Supra note 38.
98
Id.
99
Id., Rule 76, Sec. 4.
100
Id., Rule 76, Sec. 5.
101
Id.
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iii. If the will is holographic, three witnesses who know the handwriting of
the testator must be presented; in the absence of such competent
witnesses, expert testimony may be resorted to106.
12. Proof required when a will is lost or destroyed. A will may be proved as
lost or destroyed when –
102
Id.
103
Id.
104
Id., Sec. 11.
105
Id.
106
Id.
107
Id., Rule 76, Sec. 8.
108
Id., Sec. 11.
109
Id., Sec. 12.
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13. Jurisprudence
In a relevant case,112 the Supreme Court held that the intention of the law
is to give the near relatives the choice of either complying with the will if they
consider it authentic, or to oppose it, if they believe it is spurious. Verily, the
purpose is frustrated when the document is not presented for their examination. If
it is argued that such choice is not essential, because anyway the relatives may
oppose, the answer is that their opposition will be at a distinct disadvantage, and
they have the right and privilege to comply with the will, if authentic, a right which
they should not be denied by withholding inspection thereof from them.
Authentication does not also invalidate the will. According to the Supreme
Court, unless the unauthenticated alterations, cancellations or insertions were
made on the date of the holographic will or on testator's signature, their presence
does not invalidate the will itself. The lack of authentication only results in the
disallowance of such changes. The requirements of authentication of changes
and signing and dating of dispositions are provided for in Articles 813 and 814 of
the Civil Code, while that which provides for the necessary conditions for the
validity of the holographic is Article 810.113
14. Contesting a will. Anyone appearing to contest a will must state in writing
the grounds for opposing its allowance and serve a copy thereof on the petitioner
and other parties interested in the estate.114 It is well-settled that in construing the
provisions of a will, the intent of the testator is controlling.115
110
Id., Sec. 6; Estate of Suntay, 50 O.G. 5321.
111
Rodelas v. Aranza, G.R. No. 58509, December 7, 1982, 119 SCRA 16.
112
Testate Estate of Felicidad Esguera Alto-Yap, G.R. No. 12190, August 30, 1958.
113
Ajero v. Court of Appeals, G.R. No. 106720, September 15, 1994, 236 SCRA 488.
114
RULES OF COURT, Rule 76, Sec. 10.
115
Rama v. Joaquin, G.R. No. 169400, September 12, 2008, 565 SCRA 104.
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15. Grounds for disallowance of a will. A will may not be allowed in the
following instances: a) if the will was not executed and attested as required by
law; b) if the testator was insane, or otherwise mentally incapable to make a will
at the time of its execution; c) if the will was executed under duress, influence of
fear, or threats; d) if the will was procured by undue and improper pressure and
influence on the part of the beneficiary, or of some other person for his benefit;
and, 5) if the signature of the testator was procured by fraud or trick, and that the
testator did not intend that the instrument should be his will at the time of fixing
his signature.116
16. Letters testamentary issued when will is allowed. When a will has been
proved and allowed, the court shall issue letters testamentary to the person
named executor if he is competent, accepts the trust and gives a bond.117
However, where some co-executors are disqualified, others who are competent
may perform the duties and discharge the trust required by the will.118
G. LETTERS OF ADMINISTRATION
Upon notice to the known heirs, creditors of the decedent, and any other
persons believed to have an interest in the estate and after hearing, the court shall
issue letters of administration to the party best entitled thereto. The letters of
administration may be granted, however, to any qualified applicant if other
competent persons having better right to the administration fail to appear when
notified and claim the issuance to them.120
1. Jurisprudence
116
RULES OF COURT, Rule 76, Sec. 9.
117
Id., Rule 78, Sec. 4.
118
Id., Sec. 5.
119
Id., Rule 76, Secs. 4 and 6.
120
Id., Rule 79, Secs. 3, 5, and 6.
121
Id., Sec. 2.
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122
Supra note 38.
123
RULES OF COURT, Rule 79, Sec. 6.
124
G.R. No. 74769, September 28, 1990, 190 SCRA 112.
125
The jurisdictional facts are the death of testator and residence within the country, as held in the case of
Vda. De Manalo v. Court of Appeals, G.R. No. 129242, January 16, 2001, 349 SCRA 135.
126
RULES OF COURT, Rule 79, Sec. 2.
127
Id., Rule 79 and Rule 78, Sec 1.
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1. Jurisprudence
128
Ramos v. Judge Barot, A.M. MTJ-001338, January 21, 2004, 420 SCRA 406.
129
Tan v. Hon. Gendorio, et. al., G.R. No. 166520, March 14, 2008; 548 SCRA 528.
130
RULES OF COURT, Rule 86, Sec. 8.
131
Ocampo et. al., v. Ocampo, G.R. No. 187879, July 5, 2010.
132
De Gala v. Gonzales, 53 Phil. 104 (1929); Roxas v. Pecson, 82 Phil. 407 (1948).
133
RULES OF COURT, Rule 80, Sec. 3.
134
Id., Rule 109, Sec. 1 (e).
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1) maintain the estate in “tenantable repair” and deliver the same to the heirs
or devisees when directed by the court;135
2) possess and manage the estate of the deceased for the payment of the
debts and expenses of administration;136
3) have access to partnership books and property where the deceased was a
partner, examine the same and upon his written application, the court may
order any surviving partner to permit the exercise of the rights and to exhibit
the books and property and may punish any partner failing to do so for
contempt;137 and,
4) with the approval of the court, to compound or compromise with a debtor of
the deceased.138 But, the administrator may only deliver properties of the
estate to the heirs after the payment of the debts, funeral charges and other
expenses against the estate, except when authorized by the court.139
In a case, it was held that the probate court may determine if properties shall be
included in the inventory. Inasmuch as the probate court can resolve questions of
title provisionally, it may determine whether the properties should not be included in
the inventory or list of properties to be administered by the administrator. However, if
there is a dispute as to title, the parties, the administrator and the opposing parties
shall resort to an ordinary action for the final determination of the conflicting claims
as the probate court has no authority to do so.142
135
RULES OF COURT, Rule 84, Sec. 2.
136
Id., Sec. 3.
137
Id., Sec. 1.
138
Id., Rule 87, Sec. 4.
139
Silverio, Jr. v. Court of Appeals, G.R. No. 178933, September 16, 2009, 600 SCRA 1.
140
RULES OF COURT, Rule 83, Sec. 1.
141
Id., Sec. 2.
142
Sanchez v. Court of Appeals, G.R. No. 108947, September 29, 1997, 279 SCRA 647.
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The widow and minor or incapacitated children of the deceased, during the
settlement of the estate, shall receive allowance as are provided by law.143 And,
under Section 3 of Rule 83, allowances for support are not limited to the “minor or
incapacitated” children of the deceased but extends to the deceased’s legitimate
spouse and children, regardless of their age, civil status or gainful employment, who
are entitled to provisional support from the funds of the estate. The allowance for
support is pursuant to Article 188 of the Civil Code which is rooted on the right and
duty to support, especially the right to education that subsists even if the children are
already beyond the age of majority. 144
Grandchildren are not entitled to provisional support from the funds of the
decedent’s estate. The law clearly limits the allowance to “widow and children” and
does not extend it to the deceased’s grandchildren, regardless of their minority or
incapacity.145
The approval by the probate court is necessary where specific properties of the
estate are sold, but not when only ideal and indivisible shares of an heir are
disposed of.146 The sale or mortgage of specific estate property may be approved by
the court under the following circumstances: 1) for the payment of debts pay the
obligation of the estate; and, 2) if a part of the real property cannot be sold, or
otherwise encumbered without injury to those interested in the remainder, the
disposition may be of the whole of the property, or so much as necessary or
beneficial under the circumstances.147
143
RULES OF COURT, Rule 83, Sec. 3.
144
Estate of Hilario Ruiz, et. al., v. Court of Appeals, et. al., G.R. No. 118671, January 29, 1996; 252
SCRA 541.
145
Id.
146
Heirs of Pedro Escanlar v. Court of Appeals, G.R. No. 119777, October 23, 1997, 281 SCRA 176.
147
RULES OF COURT, Rule 89, Sec. 2.
148
Id., Sec. 3.
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2. Jurisprudence
The conditions for granting authority to sell, mortgage or encumber the estate
are as follows:
1) the executor or administrator shall file a written petition, setting forth the
following: [a] the debts due from the deceased, [b] the expenses of
administration, [c] the legacies, [d] the value of the personal estate, [e] the
condition of the estate to be sold, mortgaged, or otherwise encumbered, and
[f]) such other facts as will show that the sale, mortgage, or other
encumbrance is necessary or beneficial;
2) the court shall then cause notice to the persons interested, stating the
nature of petition, the reason for the same, the time and place of hearing and
the court may cause further notice by publication or otherwise;
3) the court may direct the executor or administrator to give an additional
bond to account for the proceeds of the sale, mortgage, or other
encumbrance; and,
4) the court may then grant the petition to sell, mortgage or encumber in
proper cases, such part of the estate as it deems necessary.
For the mode of sale, the court may authorize the sale to be public or private,
as would be most beneficial to all parties concerned. If the property is to be sold at
auction, the mode of giving notice of the time and place of the sale shall be
governed by the provisions concerning notice of execution sale. The transaction and
court order shall be recorded in the registry of deeds.150
Rule 87, Section 1 of the Rules of Court provides that no action upon a claim
for the recovery of money or debt or interest thereon shall be commenced against
the executor or administrator. But, actions that survive, such as a claim to recover
real or personal property, or an interest therein from the estate or to enforce a lien
149
Orola v. Pontevedra, G.R. No.158566, September 20, 2005, 470 SCRA 352.
150
RULES OF COURT, Rule 89, Sec. 7.
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thereon, and actions to recover damages for an injury to person151 or property, real
or personal, maybe commenced against the executor or administrator.
1. Jurisprudence
3. Claims that do not survive. Claims that do not survive, on the other hand,
are money claims that are filed in the estate proceedings or any of the following:
a) claims arising from contract, express or implied, whether due, not due or
contingent;157 b) all claims for funeral expenses; c) expenses for the sickness of
the decedent; and, d) judgment for money against the decedent, which should be
presented in the form of claims against the estate.158 If the deceased was a
mortgagee or assignee of the right of a mortgagee, the mortgage may be
foreclosed by the executor or administrator.159
151
Melgar v. Buenviaje, G.R. No. 55750, November 8, 1989, 179 SCRA 196.
152
Claims that must be filed under the notice to creditors, such as money claims.
153
Actions that may or may not be brought against the executor or administrator.
154
ABS-CBN Broadcasting Corporation, et. al., v. Office of the Ombudsman, et. al., G.R. No. 133347,
April 23, 2010.
155
RULES OF COURT, Rule 87, Sec. 1.
156
Hilado et. al., v. Court of Appeals, G.R. No. 164108, May 8, 2009, 587 SCRA 464.
157
These claims are specifically described as contractual money claims in the RULES OF COURT, Rule 3,
Sec. 20.
158
RULES OF COURT, Rule 86, Sec. 5; Belamala v. Polinar, G.R. No. 24098, November 18, 1967, 21
SCRA 970.
159
Id., Rule 87, Sec. 5.
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If the person so cited refuses to appear and give rogatories, the court may
punish him for contempt and may commit him to prison until he submits to the order
of the court. The interrogatories, if there are any, and the answers thereto, shall be
in writing and shall be filed in court.161
It is provided under Rule 87, Section 8, of the Rules of Court, that a person
who, before the granting of letters testamentary or administration, embezzles or
alienates any money, goods, chattels or effects of the deceased, shall be liable to an
action in favor of the executor or administrator of the estate for double the value of
the property misappropriated, to be recovered for the benefit of the estate. This
applies to a situation where the embezzlement causes loss to the estate.162
P. RENDITION OF ACCOUNT
160
Id., Sec. 6.
161
Id.
162
Marshall v. Anthalz, 54 Phil. 448 (year).
163
RULES OF COURT, Rule 87, Sec. 7.
164
Id., Sec. 8.
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R. STATUTE OF NON-CLAIMS
165
Id., Sec 9.
166
Oscar M. Herrera, REMEDIAL LAW III-A, 2005 Ed., pp. 174-175.
167
RULES OF COURT, Rule 86, Sec. 11.
168
Sikat v. Vda. De Villanueva, 57 Phil. 486 (1932).
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However, before an order of distribution is issued, the court may, for cause
shown and on such terms as are equitable, allow a claim to be filed within a time not
exceeding one (1) month.169
1. Jurisprudence
a. Court has discretion to extend period. In one case, the Supreme Court
ruled that Rule 86, Section 2, of the Rules of Court gives the probate court
discretion to allow claims presented beyond the period fixed, provided that
they are filed within one (1) month from the expiration of the period but in no
case beyond the date of entry of the order of distribution. Thus, a contingent
claim filed within both periods is allowed.170
b. Pendency of the case before the regular courts is good excuse for
delay of claim. More to the point, the period prescribed in the notice to
creditors is not exclusive; that money claims against the estate may be
allowed anytime before an order of distribution is entered, at the discretion of
the court for cause and upon such terms as are equitable. And, the pendency
of the case before the regular courts was considered a good excuse for the
delay of the claim.171
T. FILING OF CLAIMS
A claim may be filed with the clerk of court with the necessary vouchers and
supporting affidavits, serving a copy of thereof on the executor or administrator. 172 If
the claim is not due, or is contingent, it must also be supported by affidavit stating
the particulars thereof. When the affidavit is made by a person other than the
claimant, he must set forth therein the reason why it is not made by the claimant.173
1. Money claim against the estate does not require certification of non-
forum shopping. A certification of non-forum shopping is required only for
complaints and other initiatory pleadings and not in contingent money claim
against the estate of a decedent which is not an initiatory pleading. The whole
probate proceeding is initiated upon the filing of the petition for allowance of the
decedent's will. Under Sections 1 and 5, Rule 86 of the Rules of Court, after
granting letters of testamentary or of administration, all persons having money
169
RULES OF COURT, Rule 86, Sec. 2.
170
Danan v. Buencamino, G.R. No. 57205, December 14, 1981, 110 SCRA 352.
171
Echaus v. Blanco, G.R. No. 41295, December 4, 1989, 179 SCRA 704.
172
RULES OF COURT, Rule 86, Sec. 9.
173
Id.
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SPECIAL PROCEEDINGS
claims against the decedent are mandated to file or notify the court and the
estate administrator of their respective money claims.174
The claims that must be filed under the notice are as follows: a) all claims for
money against the decedent arising from contract, express or implied, whether the
same be due, not due, or contingent; b) all claims for funeral expenses and
expenses for the last sickness of the decedent; and, c) judgment for money against
the decedent.175
Claims that are not filed within the time limited in the notice are barred forever,
except that they may be set forth as counterclaims in any action that the executor or
administrator may bring against the claimants. Where an executor or administrator
commences an action, or prosecutes an action already commended by the
deceased in his lifetime, a debtor may set forth in an action by the executor or
administrator against him, by answer, the claims he has against the decedent,
instead of presenting them independently as a claim against the estate and mutual
claims may be set off against each other in such action. Claims that are not yet due,
or are contingent, may be approved at their present value.176
174
Sheker v. Sheker, G.R. No. 157912, December 13, 2007, 540 SCRA 111.
175
RULES OF COURT, Rule 86, Sec. 5.
176
Id.
177
Id., Sec. 11.
178
Id., Rule 86, Secs. 11 and 12.
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SPECIAL PROCEEDINGS
X. APPEAL OF JUDGMENT
1. Jurisprudence
Y. PAYMENT OF DEBTS
179
Id., Rule 109, Sec. 1 (c).
180
Id., Sec. 13.
181
Briones v. Henson-Cruz, G.R. No. 159130, August 22, 2008, 563 SCRA 69.
182
RULES OF COURT, Rule 88, Sec. 2.
183
Id.
184
Id., Sec. 3.
185
Id.
186
Id., Sec. 6.
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SPECIAL PROCEEDINGS
a) The executor or administrator shall pay the debts in accordance with the
preference of credits established by the Civil Code.188
b) No creditor of any one class shall receive any payment until those of the
preceding class are paid.189
c) If there are no assets sufficient to pay the credits of any one class of
creditors, each creditor within such class shall be paid a dividend in
proportion to his claim.190
d) Where the deceased was a non-resident, his estate in the Philippines shall be
disposed of in such a way that creditors in the Philippines and elsewhere may
receive an equal share in proportion to their respective credits.191
e) Claims duly proved against the estate of an insolvent resident of the
Philippines, the executor or administrator having had the opportunity to
contest such claims, shall be included in the certified list of claims proved
against the deceased. The owners of such claims shall be entitled to a just
distribution of the estate in accordance with the preceding rules if the property
of such deceased person in another country is likewise equally apportioned to
the creditors residing in the Philippines and other creditors, according to their
respective claims.192
The executor or administrator shall pay the debts and legacies of the deceased
within a period of time fixed by the court, which shall not exceed one (1) year, but
the court may, on motion of the executor or administrator and after hearing, extend
the time as the circumstances of the estate require, not exceeding six (6) months for
a single extension, but the whole period allowed to the original executor or
administrator shall not exceed two (2) years.194
187
Id., Sec. 4.
188
Id., Sec. 7.
189
Id., Sec. 8.
190
Id.
191
Id., Sec. 9.
192
Id., Sec. 10.
193
Id., Rule 88, Sec. 11.
194
Id., Sec. 15.
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SPECIAL PROCEEDINGS
Under Rule 90, Section 1 of the Rules of Court, the properties of the estate
shall only be distributed after the payment of the debts, funeral charges, allowance
of the widow, inheritance tax, if any, and other expenses on the application of the
executor or administrator, except when authorized by the Court.195
BB. COLLATION
Collation is the act by virtue of which descendants or other forced heirs who
intervene in the division of the inheritance of an ascendant bring into the common
mass, the property which they received from him, so that the division may be made
according to law and the will of the testator.196
Every compulsory heir, who succeeds with other compulsory heirs, must bring
into the mass of the estate any property or right which he may have received from
the decedent, during the lifetime of the latter, by way of donation, or any other
gratuitous title, in order that it may be computed in the determination of the legitime
of each heir, and in the account of the partition.197
Collation is the act by virtue of which descendants or other forced heirs who
intervene in the division of the inheritance of an ascendant bring into the common
mass, the property which they received from him, so that the division may be made
according to law and the will of the testator. Collation is only required of compulsory
heirs succeeding with other compulsory heirs and involves property or rights
received by donation or gratuitous title during the lifetime of the decedent. The
purpose is to attain equality among the compulsory heirs in so far as possible for it is
presumed that the intention of the testator or predecessor in interest making a
donation or gratuitous transfer to a forced heir is to give him something in advance
on account of his share in the estate, and that the predecessor's will is to treat all his
heirs equally, in the absence of any expression to the contrary. Collation does not
impose any lien on the property or the subject matter of collationable donation. What
is brought to collation is not the property donated itself, but rather the value of such
property at the time it was donated, the rationale being that the donation is a real
alienation which conveys ownership upon its acceptance, hence any increase in
value or any deterioration or loss thereof is for the account of the heir or donee.198
195
Silverio, Jr., v. Court of Appeals, G.R. No. 178933, September 16, 2009, 600 SCRA 1.
196
Vizconde v. Court of Appeals, G.R. No. 118449, February 11, 1998, 286 SCRA 217.
197
CIVIL CODE, Art. 1061.
198
Supra note 196.
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SPECIAL PROCEEDINGS
1. Administrator not liable or cannot profit from the increase or suffer loss
from the decrease. No executor or administrator shall profit by the increase, or
suffer loss by the decrease or destruction, without his fault, of any part of the
estate. An executor or administrator must account for the excess when any part
of the estate is sold for more than the appraised value, and if any is sold for less,
the executor or administrator is not responsible for the loss, if the sale has been
justly made. If the executor or administrator settles any claim against the estate
for less than its nominal value, the executor or administrator is entitled to charge
in his account but only the amount actually paid on the settlement.199 Moreover,
no executor or administrator shall be accountable for debts due the deceased
which remain uncollected without his fault.200
199
RULES OF COURT, Rule 85, Sec. 2.
200
Id., Sec. 3.
201
Id., Sec. 4.
202
Id., Sec. 5.
203
Id., Sec. 7.
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SPECIAL PROCEEDINGS
5. Greater sum allowed in special cases. But in any special cases, where the
estate is large, and the settlement is attended with great difficulty requiring a high
degree of capacity on the part of the executor or administrator204 a greater sum
may be allowed by the court. If objection to the fees allowed be taken, the
allowance may be re-examined on appeal.205 When the deceased by will makes
some other provision for the compensation of the executor, it shall be a full
satisfaction for services rendered, unless by a written instrument filed in the court
the executor renounces all claims to the compensation provided in the will.206
204
De Gala-Sison v. Madella, et.al., G.R. No. L-24584, October 30, 1975, 67 SCRA 478.
205
RULES OF COURT, Rule 85, Sec. 7.
206
Id.
207
Id.
208
Id.
209
Quasha Ancheta Pena v. LCN Construction Corp., G.R. No. 174873, August 26, 2008, 563 SCRA 426.
210
Gonzalez-Orense v. Court of Appeals, G.R. No. 80526, July 18, 1988, 163 SCRA 477.
211
G.R. No. 127165, May 2, 2006, 488 SCRA 449.
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SPECIAL PROCEEDINGS
The distribution of the estate can only be made after strict compliance with the
provisions of the Rules of Court. 217 Hence, the estate may be distributed only if the
debts, funeral charges, expenses of administration, the allowance to the widow and
inheritance tax, if there are any, have been paid
212
Kalaw v. Intermediate Appellate Court, G.R. No. 74618, September 2, 1992, 289 SCRA 213.
213
RULES OF COURT, Rule 85, Sec. 9.
214
Id., Sec. 10.
215
Id., Sec. 11.
216
Id., Sec. 1.
217
Id., Rule 90.
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SPECIAL PROCEEDINGS
settlement of accounts, as long as they first file a bond conditioned on the payment
of the estate’s obligations.218
In one case, the Supreme Court construed the phrase "judicial expenses of the
testamentary or intestate proceedings" as not including the compensation paid to a
trustee of the decedent's estate when it appeared that such trustee was appointed
for the purpose of managing the decedent's real estate for the benefit of the
testamentary heir. The same is true with premiums paid on the bond filed by the
administrator as an expense of administration since the giving of a bond is in the
nature of a qualification for the office, and not necessary in the settlement of the
estate.219
No distribution shall be allowed until the payment of the obligations has been
made and provided it refers to a part of the estate that is not affected by any
controversy and the distributees or any of them give a bond in a sum to be fixed by
the court conditioned for the payment of the obligations within such time as the court
directs.220 A judge commits a grave abuse of discretion when he orders a partial
distribution of the estate without the payment of estate taxes.221
218
Figuracion-Gerilla v. Vda. de Figuracion, G.R. No. 154322, August 22, 2006, 499 SCRA 484.
219
Commissioner of Internal Revenue v. Court of Appeals, et. al., G.R. No. 123206, March 22, 2000, 328
SCRA 666.
220
Supra note 209.
221
Vera v. Navarro, G.R. No. 27745, October 18, 1977, 79 SCRA 408.
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SPECIAL PROCEEDINGS
parts, to which each is entitled, and such persons may demand and recover their
respective shares from the executor or administrator, or any other person having the
same in his possession.
The only instance in which a party interested in a probate proceeding may have
a final liquidation set aside is when he is left out by reason of circumstances beyond
his control or through mistake or inadvertence not imputable to negligence. Even
then, according to the Supreme Court, the better practice to secure relief is
reopening of the same case by proper motion within the reglementary period,
instead of an independent action, the effect of which, if successful, would be for
another court or judge to throw out of decision or order already final and executed
and reshuffle properties long ago distributed and disposed of.222
Certified copies of final orders and judgments of the court relating to the estate
or partition shall be recorded in the registry of deeds of the province where the
property is situated.225
222
Tirso T. Reyes v. Barreto-Datu, G.R. No. 17818, January 27, 1967, 19 SCRA 85.
223
Moran, COMMENTS ON THE RULES OF COURT, 1997 ed., Vol. 3, pp. 688-689.
224
RULES OF COURT, Rule 90, Sec. 3.
225
Id., Sec. 4.
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SPECIAL PROCEEDINGS
III. ESCHEATS
A. DEFINITION
B. WHEN FILED
D. WHERE FILED
The petition is filed in the Regional Trial Court where the deceased last resided
or in which he had property if he resided out of the Philippines229
E. CONTENTS OF PETITION
The petition shall set forth the facts and pray that the estate of the deceased be
declared escheated.230
F. ORDER OF HEARING
The court shall fix as date and place for the hearing of the petition, which date
shall not be more than six (6) months after the rendition of the order.231
226
Municipal Council v. Colegio de San Jose, Inc., 65 Phil. 323 (1938).
227
RULES OF COURT, Rule 91, Sec.1.
228
Id.
229
Id.
230
Id.
231
The Rules use the word “entry” but it means rendition.
E-35
SPECIAL PROCEEDINGS
G. PUBLICATION
The order shall also direct that a copy thereof shall be published at least once a
week for six (6) successive weeks in some newspaper of general in the province as
the court deems best.232
H. JUDGMENT
After hearing, the court shall adjudge the properties escheated after payment of
just debts and charges, and the properties shall be assigned pursuant to law as
follows:
1. The personal estate shall be assigned to the municipality or city where the
deceased last resided in the Philippines;
2. The real estate shall be assigned to the municipalities or cities,
respectively, in which the same is situated.
3. If the deceased never resided in the Philippines, the whole estate may be
assigned to the respective municipalities or cities where the same is located.
4. Such estate shall be for the benefit of public schools, and public charitable
institutions and centers in said municipalities or cities.233
J. JURISPRUDENCE
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SPECIAL PROCEEDINGS
4. When reversion will not prosper. When a Filipino citizen sells land to an
alien who later sells the land to a Filipino, the invalidity of the first transfer is
corrected by the subsequent sale to a citizen. Similarly, where the alien who buys
the land subsequently acquires Philippine citizenship, the sale was validated
since the purpose of the constitutional ban to limit land ownership to Filipinos has
been achieved. In short, the law disregards the constitutional disqualification of
the buyer to hold land if the land is subsequently transferred to a qualified party
or the buyer himself becomes a qualified party. Hence, reversion proceedings will
no longer prosper since the land is now in the hands of Filipino citizens.
K. PERMANENT TRUST
The court may order the establishment of a permanent trust so that only income
from the property shall be used.238 Article 1013 of the Civil Code specifically allows a
perpetual trust, because this provision of law is inapplicable. Suffice it to state that
the article is among the Civil Code provisions on intestate succession, specifically on
the State inheriting from a decedent, in default of persons entitled to succeed. Under
this article, the allowance for a permanent trust, approved by a court of law, covers
property inherited by the State by virtue of intestate succession. The article does not
cure a void testamentary provision which did not institute an heir. Accordingly, the
236
In the matter of escheat proceedings of the estate of the deceased Anne Fallon Murphy and Tomas
Fallon married to Julia Fallon v. Bezore, et al., G.R. No. L-14157, October 26, 1960.
237
Republic v. Register of Deed of Roxas City, G.R. No. 158230, July 16, 2008, 558 SCRA 450.
238
RULES OF COURT, Rule 91, Sec. 3.
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SPECIAL PROCEEDINGS
If a person entitled to the estate escheated appears and files a claim with the
court within five (5) years from the date of the judgment, he shall obtain possession
and title to the property. If it has already been sold, the municipality or city shall be
accountable to him for the proceeds, after deducting expenses for the care of the
estate, but a claim not made within said time shall be forever barred.
N. JURISPRUDENCE
239
Orendain v. Trusteeship of the Estate of Dona Margarita Rodriguez, G.R. No. 168660, June 30, 2009,
591 SCRA 285.
240
Id.; Republic of the Philippines v. Intermediate Appellate Court and the City of Zamboanga, G.R. No.
73831, February 27, 1987, 148 SCRA 271.
241
G.R. No. 5996, June 27, 1956.
242
Republic v. Register of Deeds of Roxas City, G.R. No. 158230, July 16, 2008, 558 SCRA 450.
E-38
SPECIAL PROCEEDINGS
2. Nullity of repudiation does not operate to convert the property into res
nulius for escheat in favor of government. In another case, the Supreme
Court held that the acceptance or repudiation of an inheritance, once made is
irrevocable and cannot be impugned, except when it was made through any of
the causes that vitiate consent or when an unknown will appears. Nevertheless,
the nullity of the repudiation does not ipso facto operate to convert the parcels of
land into res nullius to be escheated in favor of the Government. The repudiation
being of no effect whatsoever, the parcels of land should revert to their private
owners. And a party, although an American citizen, is qualified by hereditary
succession to own the property subject of the litigation.243
1. Demand drafts not presented for payment are not credits subject to
escheat. In a relevant case, the Supreme Court found that since it is admitted
that the demand drafts involved have not been presented either for acceptance
or for payment, the inevitable consequence is that the appellee bank never had
any chance of accepting or rejecting them. Verily, the appellee bank never
became a debtor of the payee concerned and, as such, the aforesaid drafts
cannot be considered as credits subject to escheat within the meaning of the
law.245
243
Republic v. de Guzman, G.R. No. 132964, February 18, 2000, 326 SCRA 267.
244
Act. No. 3936, Sec. 1. As amended by Pres. Decree No. 679; See Republic v. City of Manila, No.
30381, August 30, 1988, 165 SCRA 11 .
245
Republic v. Philippine National Bank, G.R. No. 16106, December 30, 1961, 3 SCRA 851.
E-39
SPECIAL PROCEEDINGS
IV. GUARDIANSHIP
A. DEFINITION
Persons who, though of sound mind but by reason of age, disease, weak mind
or other similar causes are incapable of taking care of themselves and their property
without outside aid, may properly be placed under guardianship.246
It is a trust relation of the most sacred character, in which one person, called
the guardian, acts for another, called the ward, that the law regards as incapable of
managing his own affairs.247 A guardian is a person lawfully invested with the power
and charged with the duty of taking care of the person and managing the property
and rights of another person who, for defect of age, understanding, or self-control, is
considered incapable to administer such person’s own affairs.248
246
Hernandez v. San Juan-Santos, G.R. No. 166470, August 7, 2009, 595 SCRA 464.
247
Francisco v. Court of Appeals, G.R. 57438, January 31, 1984, 127 SCRA 371.
248
People v. Watiwat, G.R. No. 139400, September 3, 2003, 410 SCRA 324.
249
Alamayri v. Pabare, G.R. No. 151243, April 30, 2008, 553 SCRA 147.
250
Gorostiaga v. Sarte, 68 Phil. 4 (1939).
251
Alamayri v. Pabale, G.R. No. 151243, April 30, 2008, 553 SCRA 146.
252
Rep. Act No. 7610, Sec. 3(a).
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SPECIAL PROCEEDINGS
4. Parents as guardians. When the value of the property of the child under
parental authority is P 2,000 or less, the father or the mother, without the
necessity of court appointment, shall be the legal guardian. However, when the
property of the child is more than P 2,000, the father or the mother shall be
considered guardians of the child’s property with the duties and obligations of
guardians and shall file the required petition for guardianship. For good reasons
the court may, however, appoint another suitable person.256
253
RULES OF COURT, Rule 92, Sec. 2.
254
Uy v. Court of Appeals, G.R. No. 109557, November 29, 2000, 346 SCRA 247.
255
Catalan et. al., v. Basa, G.R. No. 159567, July 31, 2007, 528 SCRA 645.
256
RULES OF COURT, Rule 93, Sec. 7.
E-41
SPECIAL PROCEEDINGS
C. KINDS OF GUARDIANS
There are three kinds of guardians under the law: 1) the legal guardian, who is
such by provision of law without the need of judicial appointment, as in the case of
the parents over the persons of their minor children, or the father, or in his absence
the mother, with respect to the property of the minor children not exceeding
P50,000.00 in value; 2) the guardian ad litem, who is a competent person appointed
by the court for purposes of a particular action or proceeding involving a minor; and,
3) the judicial guardian, or a person appointed by the court over the person and/or
property of the ward to represent the latter in all civil acts and transaction.257
Under the Rules of Court, any relative, friend or other person in behalf of an
incompetent who has no parent or guardian or the minor if fourteen (14) years of age
or over, may petition for the appointment of a general guardian for the person or
estate, or both, of such minor or incompetent.258 The guardianship court, however,
cannot adjudicate title.259 And a court order authorizing the sale of a ward’s property
is subject to appeal, not certiorari and mandamus. 260
257
Id.; People v. Watiwat, G.R. No. 139400, September 3, 2003, 410 SCRA 324.
258
RULES OF COURT, Rule 93, Sec. 1.
259
Parco v. Court of Appeals, G.R. No. 33152, January 30, 1982, 111 SCRA 262.
260
Lopez v. Teodoro, 86 Phil 499 (1950).
261
RULES OF COURT, Rule 96, Sec. 8.
262
Id., Rule 97, Sec. 2.
263
Francisco v. Court of Appeals, G.R. No. 57438, January 3, 1984, 127 SCRA 371.
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SPECIAL PROCEEDINGS
E. VENUE
A petition for guardianship involving a minor is filed with the family court or
Regional Trial Court in places where there are no designated family court where the
child resides. If the minor resides in a foreign country, the petition is filed with the
family court of the province or city where the property of the minor or any part
thereof is situated.267
264
RULES OF COURT, Rule 92, Sec. 1.
265
Id., Sec. 3.
266
A.M. No. 03-02-05-SC, May 1, 2003, Sec. 2.
267
Id., Secs. 2 and 3.
268
Id., Sec. 4.
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SPECIAL PROCEEDINGS
269
Id., Sec. 5.
270
Vancil v. Belmes, G.R. No. 132233, June 19, 2001, 358 SCRA 707.
271
A.M. No. 03-02-05-SC, May 1, 2003, Sec. 6.
272
RULES OF COURT, Rule 94, Sec. 1.
273
Id., Sec. 16.
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SPECIAL PROCEEDINGS
Section 1, Rule 137 of the Rules of Court provides that judges or judicial
officers, such as clerks of courts may not sit in any case in which they, their spouse,
or child, is pecuniarily interested, as heir, legatee, creditor or otherwise, or in which
they are related to either party within the sixth degree of consanguinity or affinity, or
to counsel within the fourth degree, computed according to the rules of the civil law,
or in which they have been executor, administrator, guardian, trustee or counsel, or
in which they have presided in any inferior court when their ruling or decision is the
subject of review, without the written consent of all parties in interest, signed by them
and entered upon the record.274
The disqualification of clerks of court in all levels is provided for under Section
1, Canon 3 of the Code of Conduct of Court Personnel, which states that “court
personnel shall avoid conflicts of interest in the performance of their official
duties.”275
274
A.M. No. 08-4-1-SC, Re: Inhibition and/or Disqualification of Clerks of Court in all levels under Sec. 1,
Canon III of the Code of Conduct of Court Personnel, June 3, 2008.; RULES OF COURT, Rule 137, Sec. 1.
275
Id.
276
Francisco v. Court of Appeals, G.R. No. 57438, January 31, 1984, 127 SCRA 371.
277
Vancil v. Belmes, G.R. 132223, June 19, 2001, 358 SCRA 707.
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SPECIAL PROCEEDINGS
much it can be said that removal is discretionary. But the discretion must be
exercised within the law, and when the latter has laid down the grounds for removal
of a guardian, discretion is limited to inquiring as to the existence of any of those
grounds.278
The court may allow the guardian to resign for justifiable causes and on
removal or resignation of the guardian, the court appoints a new one. No motion for
removal or resignation is granted unless the guardian submits the proper
accounting of the property of the ward and the court has approved the same.279
The court, motu proprio or on verified motion of any person allowed to file a
petition for guardianship, may terminate the guardianship on the ground that the
ward has come of age or has died. The guardian notifies the court of such fact
within ten days from its occurrence.280 However, a guardian cannot be removed
without approval of final accounting from the court.
278
Gonzales v. Aguinaldo, G.R. No. 74769, September 28, 1990, 190 SCRA 112; In the matter of the
guardianship of Carmen Padilla Vda. De Bengson v. Philippine National Bank, G.R. No. 17066,
December 28, 1961, 3 SCRA 751.
279
RULE ON GUARDIANSHIP OF MINORS, Sec. 24.
280
Id., Sec. 25.
281
Id., Sec. 27.
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SPECIAL PROCEEDINGS
V. ADOPTION
A. DEFINITION
The act of adoption fixes a status, vis., that of parent and child. More
technically, it is an act by which relations of paternity and affiliation are recognized
as legally existing between persons not so related by nature. It has been defined as
the taking into ones family of the child of another as son or daughter and heir and
conferring on it a title to the rights and privileges of such. The purpose of an
adoption proceeding is to effect this new status of relationship between the child and
its adoptive parents, the change of name which frequently accompanies adoption
being more an incident than the object of the proceeding.284
B. GOVERNING LAWS
1. The basic governing law on domestic adoption is Republic Act No. 8552,
which is “An Act Establishing the Rules and Policies on the Domestic Adoption of
Filipino Children.” It was approved on February 25, 1998. It took effect fifteen
(15) days after its complete publication in the Official Gazette or in at least two
newspaper of general circulation.
3. Prior laws on adoption include provisions in the Child and Youth Welfare
Code,285 the Family Code and Executive Order No. 91.286
282
Federico B. Moreno, PHILIPPINE LAW DICTIONARY, 3rd Ed., 1988, p. 37.
283
Office of the Court Administrator v. Gines, A.M. No. RTJ-92-802, July 5, 1993, 224 SCRA 261.
284
Republic of the Philippines v. Court of Appeals and Maximo Wong, G.R. No. 97906, May 21, 1992,
209 SCRA 189.
285
Pres. Decree No. 603.
286
Effective date December 17, 1986, amending Arts. 28, 29, 30, 31, 33 and 35 of Pres. Decree No. 603.
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SPECIAL PROCEEDINGS
4. The Family Code expressly repealed Articles 17-19, 27-31, 39-42 of the Civil
Code and Articles 27-29, 31, 33 and 35 of Presidential Decree No. 603.
5. And to implement the provisions of the Family Courts Act, the Supreme Court
promulgated the “Rule on Adoption,”287 which supersedes Rules 99 and 100 of
the Rules of Court on adoption.
C. DOMESTIC ADOPTION
2. Persons who may adopt. Pursuant to Section 4 of the Rule, the following
persons may adopt: 1) any Filipino citizen of legal age, at least sixteen [16] years
older than the adoptee, except when the adopter is the biological parent of the
adoptee or is the spouse of the adoptee’s parent; 2) any alien possessing the
same qualifications as above-stated for Filipino and has been living in the
Philippines for at least three (3) continuous years prior to the filing of the petition
for adoption; and 3) the guardian with respect to the ward.
4. Joint adoption. Husband and wife shall jointly adopt, except in the following
instances: 1) if one spouse is adopting the legitimate child of one spouse by the
other spouse; 2) if one spouse is adopting own illegitimate child: provided that
the other spouse signified consent thereto; or 3) if the spouses are legally
separated from each other. In case a husband and wife jointly adopt or one
spouse adopts the illegitimate child of the other, joint parental authority is
exercised by both spouses.288
287
RULE ON ADOPTION, A.M. No. 02-6-02-SC, effective August 22, 2002.
288
Id., Sec. 4.
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SPECIAL PROCEEDINGS
adoptive parents have died; or, 7) a child not otherwise disqualified by law or the
rules.289
7. Where petition for adoption is filed. The petition for adoption is filed with
the family court of the province or city where the prospective adoptive parents
reside.290
289
Id., Sec. 5.
290
Id., Sec. 6.
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SPECIAL PROCEEDINGS
11. Child and Home Study Reports. In preparing the child study report on the
adoptee, the concerned social worker shall verify with the Civil Registry the real
identity and registered name of the adoptee. If the birth of the adoptee was not
registered with the Civil Registry, it shall be the responsibility of the social worker
to register the adoptee and secure a certificate of foundling or late registration, as
the case may be.
The social worker shall establish that the child is legally available for
adoption and the documents in support thereof are valid and authentic, that the
adopter has sincere intentions and that the adoption shall inure to the best
interests of the child.
In case the adopter is an alien, the home study report must show the legal
capacity to adopt and that his government allows the adoptee to enter his country
as his adopted child in the absence of the certification required under Section
7(b) of Rep. Act No. 8552.
If after the conduct of the case studies, the social worker finds that there are
grounds to deny the petition, he shall make the proper recommendation to the
court, furnishing a copy thereof to the petitioner.291
12. Supervised trial custody. Section 15 of the Rule provides that before
issuing the decree of adoption, the court gives the adopter trial custody of the
adoptee for a period of at least six (6) months and monitored by the social
worker. During the period, temporary parental authority is vested in the adopter.
The court, motu proprio or on motion of any party, may reduce the period or
exempt the parties if it finds that the same shall be for the best interest of the
adoptee.
291
Id., Sec 13.
292
Id., Sec. 15.
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c) Order:
1) the Clerk of Court to issue to the adopter a certificate of finality;
2) the adopter to submit a certified true copy of the decree of adoption
and the certificate of finality to the Civil Registrar; and
3) the Civil Registrar of the place where the adoptee was registered as
follows:
a) to annotate on the adoptee’s original certificate of birth the decree of
adoption within thirty [30] days from receipt of the certificate of finality;
b) to issue a certificate of birth which shall not bear any notation that it
is a new or amended certificate;
c) to seal the original certificate of birth; and,
d) to submit to the court issuing the decree of adoption proof of
compliance within thirty [30] days from receipt of the decree. If the
adoptee is a foundling, the court orders the Civil Registrar where the
foundling was registered, to annotate the decree of adoption on the
foundling certificate and a new birth certificate is ordered prepared by
the Civil Registrar in accordance with the decree.294
15. Book of adoption. The Clerk of Court shall keep a book of adoptions
showing the date of issuance of the decree in each case, compliance by the Civil
Registrar with Section 16(B)(3) and all incidents arising after the issuance of the
decree.295
293
In the Matter of Adoption of Stephanie Nathy Astorga, G.R. No. 148311, March 31, 2005, 454 SCRA
541.
294
RULE ON ADOPTION, A.M.No. 02-6-02-SC, Sec. 16.
295
Id., Sec. 17.
296
Id., Sec. 19.
297
Id., Sec. 20.
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d) Order of rescission. Section 23 of the Rule provides that if the court finds
that the allegations of the petition are true, it shall render judgment ordering
the rescission of adoption and parental authority of the biological parent of the
adoptee, if known, or the legal custody of the Department of Social Welfare
and Development is restored if the adoptee is still a minor or incapacitated
and further declares that the reciprocal rights and obligations of the adopter
and the adoptee to each other are extinguished.
298
Lahom v. Sibulo, G.R. No.143989, July 14, 2003, 406 SCRA 135.
299
RULE ON ADOPTION, A.M. No. 02-6-02-SC, Sec. 21.
300
Id., Sec. 22.
301
Id., Sec. 23.
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D. INTER-COUNTRY ADOPTION
2. Who may file petition. 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 (ICAB).303
Only a child legally available for domestic adoption may be the subject of inter-
country adoption.304
3. Contents of petition. The petition must allege that the petitioner possesses
the following qualifications: 1) at least twenty-seven [27] years of age and at least
sixteen [16] years older than the child to be adopted at the time of application; 2)
if married, the name of the spouse who must be joined as co-petitioner; 3) has
the capacity to act and assume all rights and responsibilities of parental authority
under own national laws; 4) has not been convicted of a crime involving moral
turpitude; 5) eligible to adopt under own national law; 6) can provide the proper
care and support and instill the necessary moral values; 7) agrees to uphold the
basic rights of the child; 8) comes from a country with which the Philippines has
diplomatic relations; and, 9) possesses all the qualifications and none of the
disqualifications.305
302
Id., Sec. 26.
303
Id., Sec. 28.
304
Id., Sec. 29.
305
Id., Sec. 30.
306
Landingin v. Republic, G.R. No. 164948, June 27, 2006, 493 SCRA 415.
307
RULE ON ADOPTION, A.M. No. 02-6-02-SC, Sec. 32.
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There are two additional requirements that must be met to be eligible for a
U.S. immigrant visa as a child of an American citizen: 1] the adoptive parents
must have had legal custody of the child for at least two (2) years; 311 and 2] the
child must have physically resided with the adoptive parents for at least two (2)
years prior to immigration.312
308
http://manila.usembassy.gov/wwwh3205.html; http://adoption.state.gov/.
309
Id., The Hague Convention seeks to prevent the abduction, sale, or trafficking of children. It
establishes international norms and procedures for processing inter-country adoption cases involving
other Convention members, and protects the rights of children, birth parents, and adoptive parents while
promoting transparency, accountability, and ethical practices among adoption service providers.
310
Id., The adoption must be legal and final. Simply providing financially for the child does not satisfy the
legal adoption requirement.
311
Id., “Legal custody” must be awarded by order of a court or recognized government entity. The start of
legal custody begins on the date the adoptive parents were granted legal custody of the child, or the date
the adoption was finalized, whichever comes first (in the Philippines, the grant of custody is retroactive to
the date the petition was filed). An informal custodial or guardianship document, such as a sworn affidavit
signed before a notary public, is insufficient for this purpose.
312
Id., During this time, the adoptive parents must exercise primary parental control. Evidence must be
presented to establish that the child and the adoptive parents had a bona fide parent-child relationship
during any periods they resided separately.
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VI. TRUSTEES
A. DEFINITION
A trust is the confidence reposed in one person who is termed trustee, for the
benefit of another who is called cestui que trust, respecting property which is held by
the trustee for the benefit of the cestui que trust.313
B. APPOINTMENT
Upon a proper petition, a trustee may be appointed to carry into effect the
provisions of a will or written instrument.315 A non-resident alien, however, may not
avail himself of the same right. The petition may be filed in the Regional Trial Court
in which the will was allowed, if allowed here; if not, by the Regional Trial Court in
the region in which the property or part thereof affected by the trust is situated. No
publication is required but the appointment is after notice to all persons interested is
made. Similar to executors and administrators, the trustee also files a bond in an
amount fixed by the court, except when the court orders otherwise.316
313
Federico B. Moreno, PHILIPPINE LAW DICTIONARY, 3rd ed., p. 967.
314
Id.
315
RULES OF COURT, Rule 98, Sec. 1.
316
Id., Sec. 5.
317
Separate concurring opinion of Mr. Justice Antonio T. Carpio in the case of Iglesia Evangelica
Metodista en las Islas Filipinas (IEMELIF) v. Bishop Lazaro, et. al., G.R. No. 184088, July 6, 2010.
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C. FIDUCIARY
E. BOND
The trustee must file a bond in an amount fixed by the court payable to the
Government of the Philippines. Failure to do so shall be considered to have declined
or resigned the trust. The conditions of the bond for the trustee are as follows: 1)
make and return to the court a true inventory of all the real and personal estate that
at the time of the inventory shall have come to his possession or knowledge; 2)
manage and dispose of all such estate according to law and the will of the testator or
the provisions of the instrument or order under which he is appointed; 3) render a
true account of the property in his hands; and, 4) at the expiration of the trust, settle
his accounts in court and pay over and deliver all the estate remaining in his hands,
or due from him on such settlement, to the person or persons entitled thereto.
The trustee shall file an inventory and is authorized to sell or encumber trust
property with approval of the court.320 When the sale or encumbrance of any real or
personal estate held in trust is necessary or expedient, the court may, on petition
and after due notice and hearing, order such sale or encumbrance, and the
318
Supra note 128.
319
Id.
320
Id., Sec. 6.
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reinvestment and application of the proceeds thereof in such manner as will best
effect the objects of the trust. The petition, notice, hearing, order of sale or
encumbrance, and record of proceedings, shall conform to the provisions on sale or
encumbrance by guardians of the property of minors or wards.321
G. COMPENSATION OF TRUSTEE
H. REMOVAL OF TRUSTEE
The court may remove a trustee in the following instances: 1) the removal
appears essential in the interests of the petitioners; 2) the trustee is insane; or 3) the
trustee is otherwise incapable of discharging the trust or is evidently unsuitable to
act as one. A trustee, whether appointed by the court or under a written instrument,
may resign his trust if it appears to the court proper to allow such resignation.323
321
Id., Sec. 9.
322
Id., Sec. 7.
323
Id., Sec. 8.
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A. DEFINITION
B. WAYS OF COMMITMENT
1. Voluntary
2. Involuntary
a. Civil
b. Criminal
C. VENUE
A petition for the hospitalization of an insane person is filed with the Regional
Trial Court of the place where the person alleged to be insane is found.325
The petition maybe filed by the Director (now Secretary) of the Department of
Health when, in his opinion, the commitment to a hospital or other place for the
insane is for the public welfare, or the welfare of the alleged insane who in his
judgment is truly insane and such person or the one in charge of him is opposed to
the commitment. The Provincial or City Fiscal represents the Director of Health in
court. And, the court shall provide for the custody of the property or money of the
insane until a guardian is duly appointed.326
E. DISCHARGE
The Director (Secretary) of Health shall file a petition for discharge if the person
committed is temporarily or permanently cured, or may be released without
danger.327
324
People of the Philippines v. Dungo, G.R. No. 89420, July 31, 1991, 199 SCRA 860.
325
RULES OF COURT, Rule 101, Sec. 1.
326
Id., Sec. 3.
327
Id., Sec. 4.
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F. COMMITMENT OF CHILDREN
The Supreme Court issued A.M. No. 02-1-19-SC, otherwise known as the “Rule
on Commitment of Children,” which took effect on April 15, 2002. The Rule applies
to the commitment of dependent, abandoned, neglected, and disabled children. Its
objective is to ensure that every effort is exerted to promote the child's welfare and
enhance opportunities for a useful and happy life. The Rule seeks to protect the
child from all forms of neglect, abuse, cruelty, exploitation, and other conditions
prejudicial to development.328
328
RULE ON COMMITMENT OF CHILDREN, Sec. 1.
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A. DEFINITION
The Latin term habeas corpus, which literally means “you have the body,” is a
high prerogative writ, of ancient common-law origin, the great object of which is the
liberalization of those who may be imprisoned without sufficient cause. 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.329
Under Section 1, Rule 102 of the Rules of Court, the writ of habeas corpus
extends 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.” The remedy of habeas corpus has one objective: to
inquire into the cause of detention of a person and, if found illegal, the court orders
the release of the detainee. If, however, the detention is proven lawful, then the
habeas corpus proceedings terminate.331
The writ of habeas corpus generally extends to all cases of illegal confinement
or detention by which a person is either: 1) deprived of liberty, or 2) the rightful
custody of a person is withheld from the person entitled thereto.332 The writ obtains
immediate relief for those who have been illegally confined or imprisoned without
sufficient cause. The writ, however, should not be issued when the custody over the
329
Paynaga v. Wolfe, 2 Phil. 146 (1903).
330
Chavez v. Court of Appeals, G.R. No. 29169, August 19, 1968, 24 SCRA 657.
331
In the Matter of Petition for Habeas Corpus Engr. Ashraf Kunting, G.R. No. 167193, April 19, 2006,
487 SCRA 602.
332
RULES OF COURT, Rule 102, Sec. 1.
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person is by virtue of a judicial process or a valid judgment. 333 And, the writ of
habeas corpus is not available to one who is already out on bail.334
333
Fletcher v. Director of the Bureau of Corrections, UDK-14371, July 17, 2009, 593 SCRA 265.
334
Zacarias v. Cruz, G.R. No. 25899, November 29, 1969, 30 SCRA 729.
335
Martinez v. General Leandro Mendoza, et.al., G.R. No.53795, August 17, 2006, 499 SCRA 243.
336
Villavicencio v. Lukban, 39 Phil. 778 (1919).
337
Ilusorio v. Bildner, et. al., G.R. No.139789, May 12, 2000, 332 SCRA 169.
338
Malinao v. Raveles, 108 Phil. 1159 (1960).
339
Makapagal v. Santamaria, 55 Phil. 418 (1930).
340
llobrera v. Director of Prisons, 87 Phil. 179 (1950).
341
Office of the Court Administrator v. Judge Norma Perello, A.M. No. RTJ-05-1952, December 24, 2008,
575 SCRA 394.
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The writ may be issued by the Supreme Court or by the Court of Appeals or
any member thereof, enforceable anywhere in the Philippines, returnable to the
same court or any member thereof, or to the Regional Trial Court or any judge
thereof for hearing and decision.342
The Supreme Court Rule on DNA Evidence provides that post-conviction DNA
testing is available to the prosecution or any person convicted by final and executory
judgment, without prior need of court order, in cases where in a biological sample
relevant to a case exists and the testing thereof would probably result in the reversal
or modification of a judgment of conviction. When the test results are favorable to
the person convicted, either the person convicted or the prosecution may file a
petition for a writ of habeas corpus in the court of origin. When the court determines
after due hearing that the petition is meritorious, it shall reverse or modify the
judgment of conviction and order the release of the convicted person unless the
latter is being detained for some other lawful cause.343
1. Rightful custody of a minor may be filed. The Rule on Custody and Writ of
Habeas Corpus in Relation to Custody of Minors provides that a verified petition
for the rightful custody of a minor may be filed by any person claiming such right.
The party against whom it may be filed shall be designated as the respondent.
The petition for custody of minors shall be filed with the Family Court of the
province or city where the petitioner resides or where the minor may be found.345
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348
Id.
349
Id.
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SPECIAL PROCEEDINGS
A. NAME DEFINED
The Civil Code provides that no entry in the civil register shall be changed or
corrected without a judicial order354 and that no person can change his name or
350
Yu v. Republic, G.R. No. 20874, May 25, 1966, 17 SCRA 253.
351
Republic v. Court of Appeals, et. al., G.R. 88202, December 14, 1988, 168 SCRA 77.
352
Republic v. Intermediate Appellate Court, G.R. No. L-70513, October 13, 1986, 145 SCRA 25.
353
Haw Liong v. Republic, G.R. No. 21194, April 24, 1966, 16 SCRA 677.
354
CIVIL CODE, Art. 412.
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surname without judicial authority.355 And the Rules of Court provide that petition for
change of name must be heard in an adversarial proceeding. Unlike petitions for the
cancellation or correction of clerical errors in entries in the civil registry under Rule
108 of the Rules of Court as to innocuous or clerical errors only, a petition for
change of name under Rule 103 cannot be decided through a summary proceeding.
Here, the appropriate remedy is covered by Rule 103, a separate and distinct
proceeding from Rule 108 on mere cancellation and correction of entries in the civil
registry.356
The petition shall be filed in the Regional Trial Court of the place of residence of
the person desiring the change of name.357 The petition shall allege the following: 1)
that he is a bona fide resident of the region (province) for at least three [3] years; 2)
the cause for the change of name; and 3) the name asked for.358 The hearing is held
after notice and publication.359 The inclusion in the title of the petition for change of
name and in the published order of the name sought to be authorized is
jurisdictional.360 However, petitions for adoption and change of name cannot be
joined. They are not same in nature and character nor do they present common
questions of law and fact.361
Articles 376 and 412 of the Civil Code on change of names were amended by
Republic Act No. 9048,362 otherwise known as “An Act Authorizing the City Or
Municipal Civil Registrar Or The Consul General to Correct a Clerical or
Typographical Error in an Entry and/or Change of Name or Nickname in the Civil
Register Without Need of a Judicial Order,” but only in so far as clerical or
typographical errors are involved. The correction or change of such matters can now
be made through administrative proceedings and without the need for a judicial
order. In effect, R.A. 9048 removed from the ambit of Rule 108 of the Rules of Court
the correction of such errors. Rule 108 now applies only to substantial changes and
corrections in entries in the civil register.363
355
Id., Art. 376.
356
G.R. No. 157043, Republic v. Capote, February 2, 2007; 514 SCRA 76.
357
RULES OF COURT, Rule 103, Sec. 1.
358
Id., Sec. 2.
359
Id., Secs. 3 and 4.
360
Go v. Republic, G.R. No. 31760, May 25 1977, 77 SCRA 65.
361
Republic v. Hernandez, G.R. No. 117209, February 9, 1996, 253 SCRA 509.
362
Effective date is April 22, 2001.
363
Silverio v. Republic, G.R. No. 174689, October 22, 2007, 537 SCRA 373.
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D. RESIDENT ALIENS
Resident aliens may also petition for a change of name. A nonresident alien
may not avail himself of the same right; such a proceeding would not be of much
benefit to him.365 But the petition will not be entertained if the petitioner’s citizenship
is either refuted or doubtful.366
A minor may sign and verify a petition for a change of name subject to the
required assistance of a guardian ad litem, although the absence of the latter does
not void the proceeding as the petition can be amended.367
364
Rep. Act No. 9048, Sec. 2(c).
365
Ong Huan Tin v. Republic, G.R. No. 20997, April 27, 1967, 19 SCRA 966.
366
Basas v. Republic, G.R. No. 23595, February 20, 1968, 22 SCRA 652, 22 SCRA 652.
367
Tse v. Republic, G.R. No. 20708, August 31, 1967, 20 SCRA 1261.
368
Calderon v. Republic, G.R. No. 18127, April 5, 1967, 19 SCRA 721.
369
Padilla v. Republic, G.R. No. 28274, April 30, 1982; 113 SCRA 789.
370
Republic v. Court of Appeals, G.R. No. 88202, December 14, 1998, 300 SCRA 138.
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create the impression that the children are illegitimate since they would carry the
maternal surname only, which is inconsistent with the legitimate status in their
birth records.371
4. Republic Act No. 9255. Rep. Act No. 9255, otherwise known as “An Act
Allowing Illegitimate Children to Use the Surname of their Father, Amending for
the Purpose Article 176 of Executive Order No. 209, otherwise known as the
Family Code of the Philippines,” which took effect on February 24, 2004, covers
unregistered births and registered births wherein illegitimate children use the
surname of their mother. The law applies to all illegitimate children born before or
after the effective date of said law.
6. Affidavit to Use the Surname of the Father (AUSF). The Affidavit to Use
the Surname of the Father (AUSF) is availed of in cases where recognition is
made through a private handwritten instrument, or when the birth has already
been registered under the mother's surname with or without the father's
recognition. For private handwritten instruments, other documents are to be
submitted to support the claim made. Accordingly, any two (2) of the following is
needed: 1) employment records; 2) SSS/ GSIS records; 3) insurance; 4)
certification of membership in any organization; 5) Statement of Assets and
Liabilities; and 6) Income Tax Return (ITR). Consent of the child is necessary, if
the eighteen (18) years old or more at the time of the recognition. The father,
mother, child, if of legal age, or the guardian may file the public document or
AUSF in order for the child to use the surname of the father.373
371
Naldoza v. Republic, G.R. No. 55538, March 15, 1982, 112 SCRA 568.
372
Implementing Rules and Regulations of Rep. Act No. 9255, effective May 14, 2004.
373
Id.
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the Philippines, the public document or the AUSF shall be registered at the LCR
of Manila.374
8. Duty of Local Civil Registrar (LCR). Once the public document or the
AUSF is registered, the LCR of the place of birth annotates the record of birth
and the appropriate entry in the registry book. As to births outside of the
Philippines, the annotation of the record of birth shall be accomplished by the
Office of the Civil Registrar General (OCRG) and a recognition or
acknowledgement made in a public document other than the record of birth or
the AUSF is registered within twenty (20) days from the date of execution. Such
procedure applies to an illegitimate child whose paternity has been admitted by
the father.375
9. Procedure for registered births. When the birth of a child is registered, the
original surname in the Certificate of Live Birth shall not be changed or corrected
after availing of Rep. Act No. 9255. The appropriate procedure is to cause the
necessary annotations in the Certificate of Live Birth showing the surname that
the child shall use. In regard to births that have not yet been registered, a child
can automatically use the surname of the father subject to the condition that the
father executed an affidavit of admission of paternity at the time of registration.376
There is no law which provides that the wife shall change her name to that of
the husband after marriage. The wife's use of her husband's surname is optional
and is permissive rather than obligatory. This in is consonance with the principle
that surnames indicate descent. A married woman has an option, but not a duty, to
use the surname of the husband in any of the ways provided by Article 370 of the
Civil Code.377
374
Id.
375
Id.
376
Id.
377
Tolentino, CIVIL CODE OF THE PHILIPPINES, COMMENTARIES AND JURISPRUDENCE, 1990, Vol. I, p. 675.
378
Yasin v. Honorable Judge, Shari’a District Court, G.R. No. 94986, February 23, 1995, 241 SCRA 606.
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The Supreme Court held that even assuming that R.A. 8239 conflicts with the
Civil Code, the provisions of R.A. 8239, which is a special law specifically dealing
with passport issuance, must prevail over the provisions of Title XIII of the Civil
Code which is the general law on the use of surnames. It is a basic tenet in
statutory construction that a special law prevails over a general law.380
The Supreme Court maintains that Philippine laws define who may file a
petition for change of first name and for correction or change of entries in the civil
registry, where they may be filed, and what grounds may be invoked. However,
gender re-assignment is not a ground even under R.A. No. 9048, the purpose of the
latter being to avoid confusion.381
In a relevant case, the Supreme Court held: “in the absence of evidence to
show that classifying respondent as a male will harm other members of society who
are equally entitled to protection under the law, the Court affirms as valid and
justified the respondent's position and his personal judgment of being a male. xxx
In so ruling we do no more than give respect to (1) the diversity of nature; and (2)
how an individual deals with what nature has handed out. In other words, we respect
respondent's congenital condition and his mature decision to be a male. Life is
already difficult for the ordinary person. We cannot but respect how respondent
deals with his unordinary state and thus help make his life easier, considering the
unique circumstances in this case.”382
379
Remo v. Hon. Secretary of Foreign Affairs, G.R. No. 169202, March 5, 2010.
380
Id.
381
Silverio v. Republic, G.R. No. 174689, October 22, 2007, 357 SCRA 373.
382
Republic v. Cagandahan, G.R. No. 166676, September 12, 2008, 565 SCRA 72.
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C. CASES COVERED
Section 5 of Pres. Decree No. 902-A, mentioned in Sec. 5.2 of Rep. Act No.
8799, enumerates the following cases, to wit:
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D. JURISPRUDENCE
E. APPEAL
The decisions of the courts in the foregoing cases are appealable to the Court
of Appeals, as provided by Section 70 of Rep. Act No. 8799 and of Rule 43, 1997
Rules of Civil Procedure.
383
As amended by Pres. Decree No. 1758, Sec. 3.
384
Vesagas v. Court of Appeals, G.R. No. 142924, December 5, 2001, 371 SCRA 509.
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F. CORPORATE REHABILITATION
385
A.M. No. 008-10-SC, November 21, 2000.
386
Effective date January 16, 2009.
387
Castillo v. Uniwide Warehouse Club, Inc., G.R. No. 169725, April 30, 2010.
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There is no longer any provision in the Family Code for acknowledged natural
children. Children are either legitimate or illegitimate. What is to be proved is filiation,
and voluntary recognition could be the means of providing filiation if the putative
father or mother would later refuse to recognize the child. The relevant provisions of
law are Articles 172,173 and 175 of the Family Code.
In the case of illegitimate children, the action for recognition survives the death
of either or both of the parties except when the action is based on the second
paragraph of Article 172, referring to an action based on the open and continuous
possession of the status of a legitimate child and any other means allowed by the
Rules of Court in which case, the action may be brought only during the lifetime of
the alleged parent.
C. APPLICABLE PROCEDURE
The action under Rule 105 for judicial approval of voluntary recognition of minor
natural children may be converted to an action for paternity and filiation. It is settled,
however, that the status and filiation of a child cannot be compromised nor can be
left to the will or agreement of the parties.388
In DNA paternity testing, the result that excludes the putative parent from
paternity is conclusive proof of non-paternity. If the value of the Probability of
Paternity (“W”) is less than 99.9%, the results of the DNA testing shall be considered
as corroborative evidence. If the value of the Probability of Paternity is 99.9% or
higher, there shall be a disputable presumption of paternity.389
388
Uy v. Chua, G.R. No. 183965, September 18, 2009, 600 SCRA 806.
389
RULE ON DNA EVIDENCE, Sec. 9 (c).
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E. VENUE
The petition shall be filed in the family court, or in places where there is no
family court, in the Regional Trial Court where the child resides.
Aside from the jurisdictional facts, the petition shall contain the following: 1) the
names and residences of the parents or one of them who acknowledge their
compulsory heirs and the person or persons with whom the child lives; and 2) the
document containing the recognition, a copy of which should be attached to the
petition, which document is either a statement before a court of record or an
authentic writing. The court shall grant the petition when it is satisfied that the
recognition was willingly and voluntarily made and is so for the best interest of the
child.
The Court sees it fit to adopt the following rules respecting the requirement of
affixing the signature of the acknowledging parent in any private handwritten
instrument wherein an admission of filiation of a legitimate or illegitimate child is
made: 1] where the private handwritten instrument is the lone piece of evidence
submitted to prove filiation, there should be strict compliance with the requirement
that the same must be signed by the acknowledging parent; and 2] where the private
handwritten instrument is accompanied by other relevant and competent evidence, it
suffices that the claim of filiation therein be shown to have been made and
handwritten by the acknowledging parent as it is merely corroborative of such other
evidence.390
Children born out of wedlock to parents who were not allowed by law to marry
for being minors are now qualified for automatic legitimation upon marriage of the
parents, under Rep. Act No. No. 9858 that repealed Article 177 of the Family Code
of the Philippines. Article 177 provides that only children born out of wedlock to
parents who were not disqualified from getting married at the time of conception can
be legitimized. Excluded from Article 177 are children whose parents were
disqualified from getting married because they lacked the age requirement of 18
years old. Pursuant to Section 1 of the law, legitimation would automatically take
place upon marriage of the parents.391
390
De la Cruz v. Gracia, G.R. No. 177728, July 31, 2009, 594 SCRA 648.
391
Republic Act No. 9858, An Act Providing for the Legitimation of Children Born to Parents Below
Marrying Age, Amending for the Purpose the Family Code of the Philippines, As Amended, Approved on
December 20, 2009.
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SPECIAL PROCEEDINGS
The family home is a sacred symbol of family love and is the repository of
cherished memories that last during one’s lifetime. It is the dwelling house where
the husband and wife, or an unmarried head of a family reside, including the land on
which it is situated.392
While it is true that the family home is constituted on a house and lot from the
time it is occupied as a family residence and is exempt from execution or forced sale
under Article 153 of the Family Code, such claim for exemption should be set up and
proved, for instance, to the Sheriff before the sale of the property at public auction.
Failure to do so would prevent the party from later claiming the exemption based on
the principle of estoppel.393 Similarly, if a party fails to substantiate claim that the
levied property is a family home, she cannot avoid liability under the contract of
lease which she entered into.394
Rule 106 on the Constitution of the Family Home is already extraneous in view
of Article 153 of the Family Code stating that the family home is deemed constituted
on a house and lot from the time it is occupied as a family residence, judicially or
extra-judicially. And, all family homes constructed after the effective date of the
Family Code (August 3, 1988) are constituted as such by operation of law. Hence,
all existing family residences as of August 3, 1988 are considered family homes and
are prospectively entitled to the benefits accorded to a family home under the Family
Code.395
392
Cabang v. Basay, G.R. No. 180587, March 20, 2009, 582 SCRA 172.
393
Versola v. Court of Appeals, G.R. No. 164740, 31 July 2006, 497 SCRA 385.
394
Soneja v. Court of Appeals, G.R. No. 161533, June 5, 2009, 588 SCRA 450.
395
Kelley v. Planters Products, G.R. No. 172263, July 9, 2008, 577 SCRA 499.
396
Patricio v. Dario, et.al., G.R. No. 170829, November 20, 2006, 507 SCRA 438.
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SPECIAL PROCEEDINGS
therein; and second, that the heirs cannot judicially partition it during the aforesaid
periods unless the court finds compelling reasons therefor. More importantly, said
article imposes the proscription against the immediate partition of the family home
regardless of its ownership. This signifies that even if the family home has passed by
succession to the co-ownership of the heirs, or has been willed to any one of them,
this fact alone cannot transform the family home into an ordinary property, much less
dispel the protection cast upon it by the law. The rights of the individual co-owner or
owner of the family home cannot subjugate the rights granted under Article 159 to
the beneficiaries of the family home.397
397
Arriola v. Arriola, G.R. No. 177703, January 28, 2008, 542 SCRA 666.
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SPECIAL PROCEEDINGS
A. DEFINITION
Absence is a special status of a person who has left his domicile, and thereafter
his whereabouts and fate are unknown, it being uncertain whether he is already
dead or still alive.398
B. PROVISIONAL REPRESENTATIVE
C. TRUSTEE OR ADMINISTRATOR
After two (2) years without any news or after five (5) years if an agent was left
to administer the absentee’s his property, a petition for declaration of absence and
appointment of a trustee or administrator may be filed.400
The court shall fix a date and place for the hearing where all concerned may
appear to contest the petition. Copies of the notice of hearing shall be served on the
known heirs, creditors and other interested persons and published once a week for
three (3) consecutive weeks in a newspaper of general circulation. 401
E. PREFERENCES
398
Philippine Law Dictionary, p. 6.
399
RULES OF COURT, Rule 107, Sec. 1.
400
Id., Sec. 2.
401
Id., Sec. 4.
402
Id., Rule 106, Sec. 7.
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SPECIAL PROCEEDINGS
F. TERMINATION OF APPOINTMENT
In a relevant case, a wife filed a petition to declare her missing husband absent
and presumed dead. However, the husband left no property. The Supreme Court
held that in this particular situation, there is no need for the petition.403 Moreover, a
judicial declaration of absence of a spouse is not necessary as long as the
prescribed period of absence is met. Hence, the Supreme Court held that since it
remained undisputed that a person’s first husband had been absent or had
disappeared for more than eleven (11) years before she entered into a second
marriage in 1958, the second marriage, having been contracted during the regime of
the Civil Code is deemed valid, notwithstanding the absence of a judicial declaration
of presumptive death of the absentee spouse.404 However, a declaration of
presumption of death is not final.405
403
Reyes v. Alejandro, No. L-32026, January 16, 1986, 141 SCRA 65.
404
Armas v. Calisterio, G.R. No. 136467, April 6, 2000, 330 SCRA 201.
405
Jones v. Hortiguela, 64 Phil. 179 (1937).
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SPECIAL PROCEEDINGS
B. VENUE
The petition may be filed with the Regional Trial Court where the corresponding
civil registry is located.408
C. PARTIES
The following entries in the civil register, upon good and valid grounds, may be
cancelled or corrected:
1) births;
2) marriages;
3) deaths;
4) legal separations;
5) judgments of annulments of marriage;
6) judgments declaring marriages void from the beginning;
7) legitimations;
8) adoptions;
9) acknowledgments of natural children;
10) naturalization;
11) election, loss or recovery of citizenship;
12) civil interdiction;
406
RULES OF COURT, Rule 108, Sec. 1.
407
Republic v. Cagandahan, G.R. 166672, September 12, 2008, 565 SCRA 72.
408
RULES OF COURT, Rule 108, Sec. 1.
409
Republic v. Valencia, G.R. No. 32181, March 5, 1986, 141 SCRA 473.
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SPECIAL PROCEEDINGS
Upon the filing of the petition, the court shall, by an order, fix the time and place
for the hearing of the same, and cause reasonable notice thereof to be given to the
persons named in the petition. The court, before the hearing, shall also cause the
order to be published once a week for three (3) consecutive weeks in a newspaper
of general circulation in the province.411
F. NATURE OF PROCEEDING
The remedy of correction of the civil status of a person in Rule 108 is not a
summary but an adversary proceeding.412 Thus, all interested persons who may be
affected by the petition shall be made parties.413 And, when petitions for change of
name are filed before the regular courts, the procedural requirements provided by
the Revised Rules of Court as to the form and substance of the petition and as to the
necessity of publication, shall be complied with.
According to the Supreme Court, the reason why non-clerical mistakes cannot
be corrected under the summary proceeding set by Article 412 of the new Civil Code
"lies in the fact that the books making up the Civil Register and all documents
relating thereto shall be considered public documents and shall be prima facie
evidence of the facts therein contained, (Article 410, new Civil Code), and if the
entries in the civil register could be corrected or changed through a mere summary
proceeding, and not through an appropriate action, wherein all parties who may be
affected by the entries are notified or represented we would set wide open the door
to fraud or other mischief the consequences of which might be detrimental and far
reaching.”414
410
RULES OF COURT, Rule 108, Sec. 2.
411
Id., Sec. 4.
412
Republic v. Valencia, G.R. No. 32181, March 5, 1986, 141 SCRA 462.
413
RULES OF COURT, Rule 108, Sec. 3.
414
In the Matter of Correction of the Surname of Cesar Young, et. al. v. Civil Registrar of Manila, G.R. No.
36478, April 29, 1983, 121 SCRA 873.
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SPECIAL PROCEEDINGS
A. APPEAL
B. PERIOD OF APPEAL
In a proceeding for settlement of estate, the period of appeal from any decision
or final order rendered therein is thirty (30) days, a notice of appeal and a record on
appeal being required. The appeal period may only be interrupted by the filing of a
motion for new trial or reconsideration. And, once the appeal period expires without
an appeal being perfected, the decision or order becomes final.415
415
In the Matter of the Heirship of the Late Hermogenes Rodrigues, et. al., v. Robles, G.R. No. 182645,
December 4, 2009.
416
RULES OF COURT, Rule 109, Sec. 1.
417
Espinosa v. Barrios, 70 Phil. 311 (1940).
418
Fluemer v. Hix, 54 Phil. 610 (1930).
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SPECIAL PROCEEDINGS
The following orders, however, may not be appealed: order appointing a special
administrator;422 order for administrator to recover property of the estate;423 and an
order to include or exclude property in the estate;424
G. PERFECTION OF APPEAL
1. Rules 41,426 42,427 and Rule 45,428 all of the 1997 Rules of Civil Procedure
apply in conformity with Rule 72, Section 2, which refers to the applicability of the
rules of civil actions to special proceedings and which 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.
419
Sy Hong Eng v. Sy Lioc Suy, 8 Phil. 594 (1907).
420
Testate Estate of Biascan v. Biascan, G.R. No. 138731, December 11, 2000, 347 SCRA 621.
421
Tinagan v. Rovira, G.R. No. 23555, January 29, 1968, 22 SCRA 209.
422
Samson v. Barrios, 63 Phil. 198 (1936).
423
Frankle v. Webber, 57 Phil. 768 (1932).
424
Gregorie v. Baker, 51 Phil. 76 (1926).
425
Pascual v. Robles, G.R. No. 182645, December 4, 2009, 607 SCRA 770.
426
Appeal from the Regional Trial Courts.
427
Petition for Review from the Regional Trial Courts to the Court of Appeals.
428
Appeal by certiorari to the Supreme Court.
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SPECIAL PROCEEDINGS
a) those contracted by any party below eighteen (18) years of age even with
the consent of parents or guardians;
b) those solemnized by any person not legally authorized to perform
marriages, unless such marriages were contracted with either or both
parties believing in good faith that the solemnizing officer had the legal
authority to do so;
c) those solemnized without license, except those covered in the preceding
Chapter;
c) those bigamous or polygamous marriages not failing under Article 41 on
absentee spouse;
d) those contracted through mistake of one contracting party as to the identity
of the other; and
e) those subsequent marriages that is void under Article 53 for failure to
register the judgment of nullity, partition and distribution of properties, and
delivery of the children’s legitimes.
3. Jurisprudence
429
Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages,
Sec. 1.
430
Manuel v. People, G.R. No.165842, 29 November 2005, 476 SCRA 461.
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SPECIAL PROCEEDINGS
431
Morigo v. People, G.R. No. 145226, February 6, 2004, 422 SCRA 376.
432
Escritor v. Estrada, A.M. No. P-02-1651, June 22, 2006, 492 SCRA 1.
433
Tenebro v. Court of Appeals, G.R. No.150758, February 18, 2004, 423 SCRA 272.
434
Santos v. Court of Appeals, G.R. No.112019, January 4, 1995, 240 SCRA 20.
435
Id.
436
Hernandez v. Court of Appeals, G.R. No. 126010, December 8, 1999, 320 SCRA 76.
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SPECIAL PROCEEDINGS
437
Marcos v. Marcos, G.R. No. 136490, October 19, 2000, 343 SCRA 755.
438
Republic v. Dagdag, G.R. No.109975, February 9, 2001, 351 SCRA 425.
439
Choa v. Choa, G.R. No.143376, November 26, 2002, 392 SCRA 641.
440
Dedel v. Court of Appeals, G.R. No. 151867, January 29, 2004, 421 SCRA 397.
441
Ferraris v. Ferraris, G.R. No. 162368, July 17, 2006, 495 SCRA 396.
442
Villanueva v. Court of Appeals, G.R. No. 132955, October 27, 2006, 505 SCRA 564.
443
Antonio v. Reyes, G.R. No. 155800, March 10, 2006, 484 SCRA 353.
444
Paras v. Paras, G.R. No. 147824, August 2, 2007, 529 SCRA 81.
445
Republic v, Baguio, G.R. No. 171042, June 30, 2008, 556 SCRA 711.
446
Chi Ming Choi v. Court of Appeals, G.R. No. 119190, January 16, 1997, 266 SCRA 324.
447
Buenaventura v. Court of Appeals, G.R. No. 127358, March 31, 2005, 454 SCRA 261.
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the contracting party who did not obtain consent of parents and at
any time before such party has reached the age of twenty-one (21);
the sane spouse at any time before the death of either party; or by
the insane spouse during a lucid interval or after regaining sanity;
the injured party whose consent was obtained by fraud and within
five (5) years after the discovery of the fraud;
the injured party whose consent was obtained by force, intimidation,
or undue influence, within five (5) years from the time the force,
intimidation, or undue influence disappeared or ceased;
the injured party where the other spouse is physically incapable of
consummating the marriage and within five (5) years after the
celebration of marriage; and,
the injured party where the other party was afflicted with a sexually-
transmissible disease and within five (5) years after the celebration of
marriage.448
6. Trial. Section 17 states the presiding judge shall personally conduct trial and
no delegation of the reception of evidence to a commissioner is allowed, except
as to matters involving property relations. The grounds for declaration of absolute
nullity or annulment of marriage must be proved and no judgment on the
pleadings, summary judgment, or confession of judgment is allowed.
448
RULE ON DECLARATION OF ABSOLUTE NULLITY OF VOID MARRIAGES AND ANNULMENT OF VOIDABLE
MARRIAGES, Sec. 3.
449
Id., Sec. 16; RULE ON COURT-ANNEXED FAMILY MEDIATION, A.M. No. 10-4-16-SC, June 22, 2010, Rule
1, Sec. 1.
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SPECIAL PROCEEDINGS
9. When decision becomes final. The decision becomes final upon the
expiration of fifteen (15) days from notice to the parties. Entry of judgment is
made if no motion for reconsideration or new trial, or appeal is filed by any of the
parties, the public prosecutor, or the Solicitor General. Upon the finality of the
decision, the court issues the corresponding decree if the parties have no
properties. If the parties have properties, the court adopts the procedure
prescribed in Section 21 of the Rule. The entry of judgment is registered in with
the Civil Registry where the marriage was recorded and in the Civil Registry
where the family court granting the petition for declaration of absolute nullity or
annulment of marriage is located.451
450
RULE ON DECLARATION OF ABSOLUTE NULLITY OF VOID MARRIAGES AND ANNULMENT OF VOIDABLE
MARRIAGES, Sec. 17.
451
Id., Sec. 19.
452
Id., Sec. 21.
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SPECIAL PROCEEDINGS
11. Property regime that governs after the marriage is declared null and
void. The property regime of a marriage declared null and void under Article 36
of the Family Code is governed by co-ownership.453
12. Decree. Section 22 of the Rule states that the court shall issue the decree
after: (1) registration of the entry of judgment in the Civil Registry where the
marriage was celebrated and in the Civil Registry of the place where the family
court is located; (2) registration of the approved partition and distribution of the
properties of the spouses in the proper Register of Deeds where the real
properties are located; and (3) delivery of the children's presumptive legitimes in
cash, property, or sound securities.
13. Contents of the dispositive portion of the decision. The court states in
the decree the dispositive portion of the judgment entered and attach to the
decree the approved deed of partition. Except in the case of children covered
under Articles 36 and 53 of the Family Code, the court orders the Local Civil
Registrar to issue an amended birth certificate indicating the new civil status of
the children affected.454
453
Valdez v. Regional Trial Court of Quezon City, Branch 102 and Valdez, G.R. No. 112749, July 31,
1996, 260 SCRA 221.
454
RULE ON DECLARATION OF ABSOLUTE NULLITY OF VOID MARRIAGES AND ANNULMENT OF VOIDABLE
MARRIAGES, Sec. 22.
455
Id., Sec. 23.
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SPECIAL PROCEEDINGS
the judgment is binding on the parties and their successors in interest in the
settlement of the estate in the regular courts.456
2. Who may file and when. A petition for legal separation may be filed only by
the husband or the wife within five (5) years from the time of the occurrence of
any of the following causes:
456
Id., Sec. 24.
457
RULE ON LEGAL SEPARATION, Sec. 2.
458
Najera v. Najera, G.R. No. 164817, July 3, 2009, 591 SCRA 541.
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SPECIAL PROCEEDINGS
7. Effects of the decree of legal separation. The effects of the decree of legal
separation are as follows:462 1) the spouse shall be entitled to live separately
from each other but the marriage bond shall not be severed; 2) the absolute
community or conjugal partnership is dissolved and liquidated but the offending
spouse shall have the right to any share of the net profits463 earned by the
absolute community or conjugal partnership which is forfeited in favor of the
common children; and, 3) custody of the minor children is awarded to the
innocent spouse.
459
RULE ON LEGAL SEPARATION, Sec. 11.
460
Id., Sec.13.
461
Id., Sec. 19.
462
FAMILY CODE, Art. 43.
463
Siochi v. Gozon, G.R. No. 169900, March 18, 2010.
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SPECIAL PROCEEDINGS
9. Effect of death of party and duty of family, appellate court. If a party dies
at any stage of the proceedings before the entry of judgment, the case is ordered
closed and terminated, without prejudice to the settlement of estate proceedings
in the regular courts. If the party dies after the entry of judgment, the same is
binding on the parties and their successors in interest in the settlement of the
estate in the regular courts.465
10. Petition for revocation of donations. Under Section 22 of the Rule, within
five (5) years from the time the decision becomes final, the innocent spouse may
file a petition under oath in the same proceeding for legal separation to revoke
the donations in favor of the offending spouse. The revocation of the donations
shall be recorded in the Register of Deeds of Deeds in the places where the
properties are located. Alienations, liens, and encumbrances registered in good
faith before the recording of the petition for revocation in the registries of property
are respected.
After the issuance of the Decree of Legal Separation, the innocent spouse
may revoke the designation of the offending spouse as a beneficiary in any
insurance policy even if such designation is stipulated as irrevocable. The
revocation or change takes effect upon written notification thereof to the
insurer.466
464
RULE ON LEGAL SEPARATION, Sec. 20.
465
Id., Sec. 21.
466
Id., Sec. 22.
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SPECIAL PROCEEDINGS
13. Reconciliation after issuance of decree. If the spouses reconciled after the
issuance of the Decree, the court, on proper motion, issues a decree of
reconciliation stating that the Decree is set aside but the separation of property
and any forfeiture of the share of the guilty spouse already effected subsists,
unless the spouses have agreed to revive their former regime of property
relations or adopt a new regime.
15. File a verified motion for revival of regime of property relations or the
adoption of another regime in case of reconciliation. Similarly, under Section
23 of the Rule, when parties reconcile, they shall file a verified motion for revival
of regime of property relations or the adoption of another regime of property
relations in the same proceeding for legal separation, attaching to the motion
their agreement for the approval of the court. The agreement which must be
verified specifies the following: 1) properties to be contributed to the restored or
new regime; 2) those to be retained as separate properties of each spouse; and,
3) names of all their known creditors, their addresses, and the amounts owing to
each.
467
Id., Sec. 23.
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SPECIAL PROCEEDINGS
thirty (30) days from receipt of a copy of the order and submit proof of
compliance within the same period.
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SPECIAL PROCEEDINGS
The family court may direct the In the same way as spousal
deduction of the provisional support from support, the family court may direct the
the salary of the spouse.473 deduction of the provisional support
from the salary of the parent.475
3. Child Custody. In custody cases, the court considers the best interest and
material and moral welfare of the child. The court likewise considers the following
factors: a) agreement of the parties; b) desire and ability of each parent to foster
an open and loving relationship between the child and the other parent; c) the
child’s health, safety, and welfare; d) history of child or spousal abuse by the
person seeking custody or who has had any filial relationship with the child,
including anyone courting the parent; e) nature and frequency of contact with
both parents; f) habitual use of alcohol or regulated substances; g) marital
misconduct; h) the most suitable physical, emotional, spiritual, psychological and
educational environment; and, i) preference of the child if over seven [7] years of
age and of sufficient discernment, unless the parent chosen is unfit.
473
RULE ON PROVISIONAL ORDERS, Sec. 2.
474
Nepomuceno v. Lopez, G.R. No. 181258, March 18, 2010.
475
Id., Sec. 3.
476
FAMILY CODE, Art. 195.
477
Lim v. Lim, G.R. No. 163209, October 30, 2009, 604 SCRA 691.
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SPECIAL PROCEEDINGS
c) Visitation rights
Visitation rights are provided to the parent who is not awarded provisional
custody unless found unfit or disqualified by the court.479
478
RULE ON PROVISIONAL ORDERS, Sec. 4.
479
Id., Sec. 5.
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SPECIAL PROCEEDINGS
issued or whose departure from the country has been enjoined shall be
included. However, the court may recall the order, motu proprio or upon
verified motion of any of the parties, after summary hearing based on the best
interests of the child.480
f) Order of protection
The court may issue an Order of Protection requiring any person: 1) to
stay away from the home, school, business, or place of employment of the
child, parent or other party, and any other specific place designated by the
court; 2) to refrain from harassing, intimidating, or threatening such child or
the other parent or any person to whom custody of the child is awarded; 3) to
refrain from acts of commission or omission that create an unreasonable risk
to the health, safety, or welfare of the child; 4) to permit a parent, or a person
entitled to visitation by a court order or a separation agreement, to visit the
child at stated periods; 5) to permit a designated party to enter the residence
during a specified period of time in order to take personal belongings not
contested in a proceeding pending with the family court; and 6) to comply with
such other orders as are necessary for the protection of the child.481
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SPECIAL PROCEEDINGS
b) Mother has custody of child below seven (7) years of age in case of
separation of spouses. Upon separation of the spouses, the mother takes
sole custody if the child is below seven (7) years old and any agreement to
the contrary is void. The Supreme Court stated that for a child within this age
bracket, the law decides for the separated parents how best to take care of
the child and that is to give custody to the separated mother. Indeed, the
separated parents cannot contract away the provision in the Family Code on
the maternal custody of children below seven (7) years anymore than they
can privately agree that a mother who is unemployed, immoral, habitually
drunk, drug addict, insane or afflicted with a communicable disease will have
sole custody of a child under seven as these are reasons deemed compelling
to preclude the application of the exclusive maternal custody regime under
Article 213.486
484
Gamboa-Hirsch v. Court of Appeals, et.al., G.R. No. 174485, July 11, 2007, 527 SCRA 380.
485
Gualberto v. Court of Appeals, et.al., G.R. No. 156254, June 28, 2005, 461 SCRA 450.
486
Dacasin v. Dacasin, G.R. No. 168785, February 5, 2010, 611 SCRA 657.
487
Perez v. Court of Appeals, G.R. No.118870, March 29, 1996, 255 SCRA 661.
488
RULE ON CUSTODY OF MINORS AND HABEAS CORPUS IN RELATION TO CUSTODY OF MINOR CHILDREN, Sec.
14.
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SPECIAL PROCEEDINGS
c) Equity may be invoked to serve the best interest of the child. In fact,
the Supreme Court made pronouncement in one case that in a child custody
proceedings filed with the Regional Trial Court of Makati City, equity maybe
invoked to serve the best interest of the child by letting the parties take
advantage of the jurisdiction of the court rather than ordering the dismissal of
the petition on the ground that the Circuit Court, 19th Judicial Circuit, Lake
County, Illinois, USA, which granted the decree of divorce retained jurisdiction
over the case for enforcement purposes.490
d) Best interest of the child is provided for under the United Nations
Convention on the Rights of the Child. The United Nations Convention on
the Rights of the Child (UNCRC) provides that “[i]n all actions concerning
children, whether undertaken by public or private social welfare institutions,
courts of law, administrative authorities or legislative bodies, the best interest
of the child shall be a primary consideration.”491 Consequently, aside from the
material resources and the moral and social situation of each parent, other
factors may also be considered to ascertain which one has the potential to
attend to the physical, educational, social and moral welfare of the children.492
489
Supra note 485.
490
Supra note 486.
491
Supra note 485.
492
Id.
493
RULE ON PROVISIONAL ORDERS, Sec. 4.
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SPECIAL PROCEEDINGS
4. Choice of the child above seven (7) years of age. The child, who is over
seven (7) years of age with sufficient discernment,494 may choose the parent
preferred to live with, unless the parent so chosen is unfit to take charge of the
child by reasons, among others, of moral depravity, habitual drunkenness,
incapacity, or poverty. The Court may, however, exercise its discretion by
disregarding the child’s preference if the chosen one be unfit, in which instance,
custody may be given to the other parent or even to a third person.495
6. Visitation rights. The court may permit the parent who is not awarded
custody to visit the child, unless found unfit or disqualified by the court.497 The
visitation right referred to is the right of access of a noncustodial parent to his or
her child or children. Parents have the natural right, as well as the moral and
legal duty, to care for their children and see to their upbringing and safeguard
their best interest and welfare. Neither will the law nor the courts allow this
affinity to bear, absent any real, grave and imminent threat to the well-being of
the child. The father, therefore is granted visitation rights as his constitutionally
protected natural and primary right.498
494
Id., Sec. 13(b).
495
Tonog v. Court of Appeals, G.R. No. 122906, February 7, 2002, 376 SCRA 523.
496
FAMILY CODE, Art. 216.
497
RULE ON PROVISIONAL ORDERS, Sec. 5.
498
Bongdagjy v. Bongdagjy, G.R. No.140817, December 7, 2001, 371 SCRA 462.
499
Silva v. Court of Appeals, G.R. No. 114742, July 17, 1997, 275 SCRA 604.
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SPECIAL PROCEEDINGS
500
FAMILY CODE, Arts. 238 to 253.
501
Id., Art. 239.
502
Id., Art. 242.
503
Id., Art. 243.
504
Id., Art. 246.
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SPECIAL PROCEEDINGS
505
Republic of the Philippines v. Bermudez-Lorino, G.R. No. 160258, January 19, 2005, 449 SCRA 57.
506
Republic of the Philippines v. Court of Appeals, G.R. No. 163604, May 6, 2005, 458 SCRA 200.
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SPECIAL PROCEEDINGS
A. Coverage
This Rule applies to petitions for protection orders in cases of violence against
women and their children (VAWC) under R.A. No. 9262, or the "Anti-Violence
Against Women and Their Children Act of 2004." The Rules of Court apply
suppletorily and is construed to promote its objectives pursuant to the principles of
restorative justice.508
"Violence against women and their children" refers to any act or a series of acts
committed by any person against a woman who is his wife, former wife, or a woman
with whom the person has or had a dating or sexual relationship, or with whom he
has a common child, or against her child whether legitimate or illegitimate, within or
without the family abode, which result in or is likely to result in physical, sexual,
psychological harm or suffering, or economic abuse including threats of such acts,
battery, assault, coercion, harassment or arbitrary deprivation of liberty.509
The filing of a petition for protection order by the offended party suspends the
right of all other authorized parties to file similar petitions. A petition filed by the
offended party after the filing of a similar petition by an authorized party shall not be
dismissed but consolidated with the petition that is filed earlier.510
507
Administrative Matter No. 04-10-11, effective November 15, 2004.
508
Id., Secs. 1 and 2.
509
Id., Sec. 4.
510
Id., Sec. 8.
511
Pena v. Recto, G.R. No.176403, June 20, 2007 (Minute Resolution).
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If the court is satisfied from the verified allegations of the petition that there is
reasonable ground to believe that an imminent danger of violence against women
and their children exists or is about to recur, the court may issue ex parte a
temporary protection order which shall be effective for thirty days from service on the
party or person sought to be enjoined. The temporary protection order shall include
notice of the date of the preliminary conference and hearing on the merits. The
following statements must be printed in bold-faced type or in capital letters on the
protection order issued by the court:
512
Administrative Matter No. 04-10-11, Sec. 13.
513
Id., Sec. 14.
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The court may allow the introduction of any evidence of history of abusive
conduct of a respondent even if the same was not directed against the victim,
provided the same is relevant. The court may order the exclusion from the courtroom
of all persons who do not have a direct interest in the case. Such an order may be
made if the court determines on the record that requiring a party to testify in open
court: 1) would not enhance the ascertainment of truth; 2) would cause the party
psychological harm; 3) would violate the right of a party to privacy; or 4) would be
offensive to decency or public morals.514
H. Prohibited acts
The court hearing a petition for a protection order shall not order, direct, force
or in any way unduly influence the applicant for a protection order to compromise or
abandon any of the reliefs sought in the petition for protection under the law and this
Rule. Failure to comply with this section shall render the judge administratively
liable.515
I. Period to decide
The court shall decide the petition within thirty (30) days after termination of
the hearing on the merits. Where no hearing has been conducted, the court shall
decide the petition within ten days after the termination of the preliminary
conference.516
J. Judgment
If the court finds the petition meritorious, it shall render judgment granting the
offended party permanent protection against acts of violence and such other
necessary reliefs provided in Section 11 of this Rule. The court shall not deny the
issuance of a permanent protection order due to the lapse of time between the act of
violence and the filing of the petition, subject to Section 24, Rep. Act No. 9262. The
judgment shall be immediately executory.517
514
Id., Sec. 26.
515
Id., Sec. 27.
516
Id., Sec. 29.
517
Id., Sec. 30.
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The civil action for damages shall be governed by the 1997 Rules of Civil
Procedure. However, the offended party cannot recover the same damages twice for
the same act or omission.518
Section 36 of the Rule states that an act of violence covered by R.A. No. 9262
constituting a criminal offense shall subject the offender to criminal proceedings,
which shall be governed by the Revised Rules of Criminal Procedure. Where the
judgment of conviction declares that the guilt of the accused has been proved
beyond reasonable doubt, the permanent protection order shall issue as a matter of
course.
M. Conspiracy applied
In a relevant case, the Supreme Court stated that the principle of conspiracy
under Article 8 of the Revised Penal Code may be applied suppletorily to Rep. Act
No. 9262, in view of the express provision of Section 47 that the Revised Penal
Code shall be supplementary to said law. Thus, general provisions of the Revised
Penal Code, which by their nature, are necessarily applicable, may be applied
suppletorily.519
The court may also order any person, against whom a permanent protection
order is issued, to give a bond to keep the peace. It shall be the duty of said person
to present two sufficient sureties who shall undertake that such person will not
518
Id., Sec. 35.
519
Go-Tan v. Spouses Perfecto and Juanita Tan, G.R. No. 168852, September 30, 2008, 567 SCRA 231.
520
People v. Genosa, G.R. No. 148220, June 15, 2005, 460 SCRA 85.
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commit the violence sought to be prevented, and that, in case such violence is
committed they will pay the amount determined by the court in its judgment. The
court in its discretion shall fix the duration of the bond.521
P. Reproduction of evidence
All hearings of cases of violence against women and their children shall be
conducted in a manner consistent with the dignity of women and their children and
respect for their privacy. Records of the cases shall be treated with utmost
confidentiality. Whoever publishes or causes to be published, in any format, the
name, address, telephone number, school, business address, employer or other
identifying information of the parties or an immediate family or household member,
without their consent or without authority of the court, shall be liable for contempt of
court and shall suffer the penalty of one year imprisonment and a fine of not more
than Five Hundred Thousand (P500,000.00) Pesos.523
R. System of coding
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3. Contents of the petition. The petition must be verified, signed, and shall
allege the following:
525
Rule on the Writ of Amparo, Sections 23 and 26.
526
As the term is used in United Nations Instruments, Annotation to the Rule on the Writ of Amparo.
527
Republic Act No. 9851, Philippine Act on Crimes Against International Humanitarian Law, Genocide,
and Other Crimes Against Humanity, Section 3.
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The petition may include a general prayer for other just and equitable
relief.528
528
RULE ON THE W RIT OF AMPARO, Sec. 5.
529
Castillo v. Cruz, G.R. No. 182165, November 25, 2009, 605 SCRA 628.
530
Canlas v. NAPICO Homeowners, G.R. No. 182795, June 5, 2008, 554 SCRA 208.
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a) Order of preference
Section 2 of the Rule provides that the petition may be filed by the
aggrieved party or by any qualified person or entity in the following order: 1)
Any member of the immediate family, namely: the spouse, children and
parents of the aggrieved party; 2) Any ascendant, descendant or collateral
relative of the aggrieved party within the fourth civil degree of consanguinity
or affinity, in default of those mentioned in the preceding paragraph; or 3) Any
concerned citizen, organization, association or institution, if there is no known
member of the immediate family or relative of the aggrieved party.
7. Where to file petition. Venue for the filing of a writ of amparo is governed by
Section 3 of the Rule. The petition may be filed with the Regional Trial Court of
the place where the threat, act or omission was committed or any of its elements
occurred, or with the Sandiganbayan, the Court of Appeals, the Supreme Court,
or any justice of such courts and is enforceable anywhere in the Philippines.
When issued by a Regional Trial Court or a judge thereof, the writ is returnable
531
Reyes v. Court of Appeals, G.R. No. 182161, December 3, 2009, 626 SCRA 580.
532
G.R. No. 182498, June 22, 2010.
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before such court or judge; when issued by the Sandiganbayan or the Court of
Appeals or any of their justices, it may be returnable before such court or any
justice thereof, or to any Regional Trial Court of the place where the threat, act or
omission was committed or any of its elements occurred; or when issued by the
Supreme Court or any of its justices, it may be returnable before such Court or
any justice thereof, or before the Sandiganbayan or the Court of Appeals or any
of their justices, or to any Regional Trial Court of the place where the threat, act
or omission was committed or any of its elements occurred.533
8. Payment of docket fees is not required. The petitioner is exempt from the
payment of the docket and other lawful fees and the court, justice or judge
dockets the petition and acts upon it immediately.534
9. Summary hearing. The hearing on the petition is summary. But the court may
call for a preliminary conference to simplify issues and determine the possibility
of obtaining stipulation and admissions from the parties. The hearing is from day
to day until completed and given priority as petitions for habeas corpus.535
10. Interim reliefs. Under Section 14 of the Rule, upon filing of the petition or at
any time before final judgment, the court may grant an interim relief order in the
form of temporary protection order (TPO), inspection order (IO), production order
(PO) or witness protection order (WPO). (For a more extensive discussion of the
interim relief orders, please refer to the Chapter on Provisional Remedies).
12. Contempt. The court may order the respondent who refuses to make a
return, or who makes a false return or any person who otherwise disobeys or
resists a lawful process or order of the court to be punished for contempt and
may be imprisoned or imposed a fine.537
533
Id., Sec. 3.
534
Id., Sec. 4.
535
Id., Sec. 13.
536
Id., Sec. 15.
537
Id., Sec. 17.
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13. Burden of proof and standard of diligence required. The parties establish
claims by substantial evidence. Hence, the respondent who is a private individual
or entity must prove that ordinary diligence was observed in the performance of
duty. The respondent who is a public official or employee must prove that
extraordinary diligence was observed in the performance of duty. However, the
respondent public official or employee cannot invoke the presumption that official
duty has been regularly performed to evade responsibility or liability.538
14. Judgment. The court renders judgment within ten (10) days from the time
the petition is submitted for decision. If the allegations in the petition are proven
by substantial evidence, the court grants the privilege of the writ and such reliefs,
otherwise, the privilege is denied.539
15. Appeal in writ of amparo. Any party may appeal from the final judgment or
order to the Supreme Court under Rule 45. The appeal may raise questions of
fact or law or both and the period of appeal is five (5) working days from the date
of notice of the adverse judgment. The appeal petition for writ of amparo is given
the same priority as habeas corpus cases.541
538
Id..
539
Id., Sec. 18.
540
Secretary of National Defense v. Manalo, G.R. No. 180906, October 7, 2008, 568 SCRA 1.
541
RULE ON THE W RIT OF AMPARO, Sec. 19.
542
Id., Secs. 24 and 25.
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2. Nature of petition. Petitions for writs of amparo and habeas data are
extraordinary remedies which cannot be used as tools to stall the execution of a
final and executory decision in a property dispute. Hence, in one case,544 the
Supreme Court held that the filing of the petitions should have been barred, for
criminal proceedings against the parties had commenced after they were
arrested in flagrante delicto and proceeded against in accordance with Section 6,
Rule 112 of the Rules of Court. However, according to the Supreme Court, the
validity of the arrest or the proceedings conducted is a defense that may be set
up by respondents during the trial. The relief afforded by the writs may, however,
be made available to the aggrieved party by motion in the criminal proceedings.
In a petition for habeas data545 praying, among others, that the Philippine
National Police (PNP) release the report, to wit: on the burning of the homes of
the petitioners in the land in dispute, the acts of violence employed against them
by the private respondents, and the investigation report if an investigation was
conducted furnishing the Supreme Court and the petitioners with copy of the
same, the Court found the petition to be lacking. What the Rule on Writ of
Habeas Data requires- concrete allegations of unjustified or unlawful violation of
the right to privacy related to the right to life, liberty or security as a minimum,
thus rendering the petition fatally deficient.
The Supreme Court continued to state in the above case that the petition
did not allege, much less demonstrate, any need for information under the control
of police authorities other than those it has already set forth as integral annexes.
The necessity or justification for the issuance of the writ, based on the
insufficiency of previous efforts made to secure information, has not also been
shown. In sum, the prayer for the issuance of a writ of habeas data is nothing
more than the “fishing expedition” that the Court - in the course of drafting the
543
RULE ON THE W RIT OF HABEAS DATA, Sec. 1.
544
Castillo vs. Cruz, G.R. No. 182165, November 25, 2009, 605 SCRA 628.
545
Masangkay, et.al. v. Hon. Elmo del Rosario, G.R. No. 182484, June 17, 2008, 554 SCRA 768.
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Rule on habeas data - had in mind in defining what the purpose of a writ of
habeas data is not. In this light, the outright denial of the petition for the issuance
of the writ of habeas data is fully in order.
3. Where to file petition. The petition may be filed with the Regional Trial Court
where the petitioner or respondent resides, or that which has jurisdiction over the
place where the data or information is gathered, collected or stored, at the option
of the petitioner. The petition may also be filed with the Supreme Court or the
Court of Appeals or the Sandiganbayan when the action concerns public data
files of government offices.546
4. Docket fees in writ of habeas data. No docket and other lawful fees are
required from an indigent547 petitioner. The petition is docketed and acted upon
immediately, without prejudice to subsequent submission of proof of indigence
not later than fifteen (15) days from the filing of the petition.548 The clients of the
Public Attorneys’ Office (PAO) are exempt from payment of docket and other
fees incidental to instituting an action in court in original proceeding or on
appeal.549
5. Petition for writ of habeas data and contents. A verified written petition for
a writ of habeas data should contain the following:
546
RULE ON THE W RIT OF HABEAS DATA, Sec. 3.
547
One who has no property and money sufficient for food, shelter, and basic necessities for them and
their family, as held in the case of Algura v. Local Government of the City of Naga, G.R. No. 150135,
October 30, 2006, 506 SCRA 81.
548
RULE ON THE W RIT OF HABEAS DATA, Sec. 5.
549
Rep. Act No. 9406, Sec. 16(d).
550
RULE ON THE W RIT OF HABEAS DATA, Sec. 6.
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8. Judgment. The court renders judgment within ten (10) days from the time
the petition is submitted for decision. If the allegations in the petition are proven
by substantial evidence, the court enjoins the act complained of, or order the
deletion, destruction, or rectification of the erroneous data or information and
grant other relevant reliefs as may be just and equitable; otherwise, the privilege
of the writ is denied. Upon its finality, the judgment is enforced by the sheriff or
any lawful officer designated by the court, justice or judge within five (5) working
days.553
551
Id., Sec. 7.
552
RULE ON THE W RIT OF HABEAS DATA, Sec. 12.
553
Id., Sec. 16.
554
Id., Sec. 23.
555
Id., Sec. 24.
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