Special

Proceedings
Group 3 - Casino, Chavez, Derogongan, Fermano,
Gabor, Gemelo, Kee, Labastida
 RULE 101
PROCEEDINGS FOR HOSPITALIZATION
OF INSANE PERSONS
When is the rule applicable?
The rule is applicable only when the hospitalization of the
insane person is for the public welfare or for the welfare of said
person, who in the judgment of the Director of Health, is
insane, provided that the one who has charge of him is
opposed to such confinement (Herrera. P. 462).
What is the Procedure for the
Hospitalization of Insane Persons?
Hospitalization of the
Insane (Rule 101) vis a vis Guardianship
(Rules 92-97)

Hospitalization of the Guardianship

Insane (Rule 101) (Rules 92-97)

For the protection of For the purpose of

protecting the community at protecting the person and
large and in the nature of the estate of the insane
police regulations (Herrera, (Herrera, p. 463).
p. 463).
Where shall a petition for the commitment of a person
to a hospital or other place for the insane may be filed?
RTC of province where the person alleged to be
insane is found.

Who shall file the petition?

Director of Health with the assistance of city or
provincial prosecutor.
 What is insanity?
A condition of the mind which is so impaired in function or
so deranged as to induce a deviation from normal conduct
on the person so afflicted.

What are the requisites?

1. Director of Health is of the opinion that the commitment
of the person alleged to be insane is for public welfare
or for the welfare of said person;
2. Such person or the one having charge of him is
opposed to his being taken to a hospital or asylum.
What is the order of hearing?
1. Petition should be filed sufficient in form and substance.
2. The court, by an order reciting the purpose of the petition, shall fix a date for the
hearing thereof.
3. Copies of the notice of hearing shall be served upon:

a. The person alleged to be insane; and b. The one having charge of him, or on
such of his relatives residing in the province/city as the judge may deem proper.

4. The court shall order the sheriff to produce the alleged insane person (if possible)
on the date of hearing;
5. Upon satisfactory proof that the commitment is necessary and that his relatives
are unable to take proper custody and care of him, the court shall order his
commitment in a hospital/asylum;
6. The court shall make proper provisions for the custody of the ward’s property
until a guardian is properly appointed.
 What is the Right of the insane person to
notice and hearing:
Ordinarily, the person whose liberty is sought to be
restrained is entitled by law to proper notice to such
proceeding and by force of statute other persons may be
entitled to notice. While it has been held that want of
notice does not render the proceedings invalid and that
the commitment is not subject to collateral attack, it has
also been held that want of notice renders the proceeding
void or at least, is good ground for vacating the order of
commitment (Herrera, p. 464).
Hearing and Judgment
Burden of proof?

In all actions and proceedings, the burden of proving insanity is on the

plaintiff who alleges it; but where it is set up as an affirmative defense, the
burden of proving rests on the defendant.

Estate of the insane person? Pending an appeal from the judgment

declaring a person to be insane, the trial court has jurisdiction to order a
third party to appear and show cause why the property of the insane should
not be delivered to the guardian. It is the duty of the court to protect the
property of the insane pending the appeal. (Mercader v. Wislizenus, G.R.
No. L-11739, August 25,1916).
When shall the insane be discharged?
When, in the opinion of the Director of Health, the person ordered to be
committed to a hospital or other place for the insane is temporarily or permanently
cured, or may be released without danger he may file the proper petition with the
Court of First Instance which ordered the commitment.

Who has the duty to prepare the petition for the Director of Health
and represent him in court in all proceedings arising under the
provisions of this rule?
It shall be the duty of the provincial fiscal or in the City of Manila the fiscal of
the city
RULE 102
HABEAS CORPUS
DEFINE WRIT OF HABEAS CORPUS.
It is a proceeding which provides for two stages whereby:

(1) a person restrained of his liberty may be released from any kind
of illegal detention; or

(2) are detained from the control of those who are entitled to their
custody. It requires the determination of whether his detention or
confinement is illegal or not or whether by his detention, another
person is deprived of his legal custody over him.
 Certiorari, Prohibition and Mandamus vis a
vis Habeas Corpus
Certiorari, Prohibition Habeas Corpus
and Mandamus

It reaches the record but not the body; concerned It reaches the body but not the record; inquiry on the
with errors committed by a court. legality of the detention.

Direct attack. Collateral attack.

Failure of respondent to file comment will not be Failure to file return constitutes contempt (indirect).
punished by contempt and will not even be declared
in default.

Court and prevailing party are named as Respondent is the detainer.

respondents
 What are the Kinds of Writ of
Habeas Corpus
1. Preliminary citation – If the person is detained under
governmental authority and the illegality of his detention
is not patent from the petition for the writ, the court
issues the citation to the government officer having
custody to show cause why the writ of habeas corpus
should not issue.

2. Peremptory writ – If the cause of the detention

appears to be patently illegal. Noncompliance with this
is punishable.
SECTION 1. TO WHAT CASES DOES
HABEAS CORPUS EXTEND?
A.Illegal confinement or detention by which any person is
deprived of his liberty, or
B. By which the rightful custody of any person is withheld from
the person entitled thereto except as otherwise expressly
provided by law.
What is the THE CONCEPT OF RESTRAINT?
- Actual and effective, and not merely nominal or moral, restraint is required.
(Zagala v. Ilustre, 48 Phil. 282)
- actual physical restraint is not always required; any restraint which will
prejudice freedom of action is sufficient. (Mon- cupa v. Enrile, et al., G.R.
No. 63345, January 30, 1986)
- If the actual effect of such psychological spell is to place a person at the
mercy of another, the victim is entitled to the protection of courts of justice
as much as the individual who is illegally deprived of liberty by duress or
physical coercion. (Caunca v. Salazar and Justo, G.R. No. L-2690, 82 Phil.
851)
When availed of (As a consequence of a
judicial proceeding):
1. There has been a deprivation of a constitutional right resulting in the
restraint of a person;
2. The court had no jurisdiction to impose the sentence;
3.An excessive penalty has been imposed, as such sentence is void as to
such excess;
4. Where the law is amended, as when the penalty is lowered. Obtain
freedom after serving minimum sentence when the penalty under an old
law has been reduced by an amendatory law (Cruz v. Director of
Prisons, G.R. No. L-6497, November 3, 1910);
5. Denial of right to a speedy trial (since it is jurisdictional);
6. Where the results of post-conviction DNA testing are
favorable to the convict.
7. Enable the parents to regain custody of a minor child, even if the latter
be in the custody of a third person of her own free will (Salvaña v. Gaela,
G.R. No. L-341155, February 21, 1931);

8. In determining the constitutionality of a statute (People of the Philippines v.

Vera, G.R. No. L-45685, November 16,1937);

9.When testing the legality of an alien‘s confinement and proposed

expulsion from the Philippines (Lao Tang Bun v. Fabre, G.R. No. L-1673, October
22, 1948);

10.In permitting an alien to land in the Philippines (Lim Cheng v. Insular

Collector of Customs, G.R. No. 16406, September 13, 1920);

11.In determining the legality of an extradition (United States v. Rauscher, 7 S.

Ct. 234, 30 L. Ed. 425, December 6, 1886).
Procedure for the Issuance of the Writ of
Habeas Corpus under Rule 102
 WHAT IS THE PURPOSE OF THE WRIT OF
HABEAS CORPUS?
The purpose of the writ is to inquire into all manner of involuntary restraint
as distinguished from voluntary, and to relieve a person therefrom if such
restraint is illegal. Any restraint which will preclude freedom of such person
is sufficient.

This is elaborated in the case of Manguila v. Judge Pangilinan where the

Highest Tribunal ruled that the object of the Writ of Habeas Corpus is to
inquire into the legality of detention, and, if the detention is found to be
illegal, to require the release of the detainee. Equally well-settled, however,
is that the writ will not issue where the person in whose behalf the writ is
sought is judged with jurisdiction or by virtue of a judgment or of a court of
record.
 HOW SHOULD THE FORMALITIES REQUIRED FOR
PETITIONS FOR HABEAS CORPUS UNDER SECTION 3 OF
RULE 102 BE CONSTRUED?

It must be construed liberally. In the case of Martin Gibbs Fletcher v. The

Director of Bureau of Corrections, July 17, 2009 UDK, the Supreme Court
declared that strict compliance with the technical requirements for a habeas
corpus petition as provided in the Rules of Court may be dispensed with where
the allegations in the application are sufficient to make out a case for habeas
corpus.
 THE NATURE OF THE PETITION FOR
HABEAS CORPUS?

Petition for habeas corpus is.like a proceeding in rem as it is an inquisition

by the government, at the suggestion and instance of an individual, most
probably, but still in the name and capacity of the sovereign.

There can be no judgment entered against anybody since there is no real

plaintiff and defendant. (Alimpos v. CA, 106 SCRA 159)
 Other nature of the writ?
1. It is not in the nature of a writ of error; nor intended as substitute for the trial
court’s function. The writ cannot be used to investigate and consider questions of
error
that might be raised relating to procedure or on the merits.
2. It cannot take the place of appeal, certiorari or writ of error.
3. The inquiry in a habeas corpus proceeding is addressed to the question of
whether the proceedings and the assailed order are, for any reason, null and
void.
4. The writ is not ordinarily granted where the law provides for other remedies in
the regular course, and in the absence of exceptional circumstances.
5. Habeas corpus should not be granted in advance of trial.
6. Habeas corpus is a summary remedy.
7. The writ of habeas corpus does not act upon the prisoner who seeks relief,
but upon the person who holds him in what is alleged to be the unlawful
authority.
Hence, the only parties before the court are the petitioner (prisoner) and the
person holding the petitioner in custody, and the only question to be resolved
is whether the custodian has authority to deprive the petitioner of his liberty.
The writ may be denied if the petitioner fails to show facts that he is entitled
thereto ex merito justicias.

8. A writ of habeas corpus, which is regarded as a “palladium of liberty” is a

prerogative writ which does not issue as a matter of right but in the sound
discretion of the court. It is, however, a writ of right on proper formalities being
made by proof.
Resort to the writ is not to inquire into the criminal act of which a complaint is
made but unto the right of liberty, notwithstanding the act, and the immediate
purpose to be served is relief from the illegal restraint.
WHAT FACTORS MUST THE COURT CONSIDER IN
GRANTING THE WRIT OF HABEAS CORPUS?
- the restraint of liberty must be in the nature of an illegal and involuntary
deprivation of freedom of action
- a court or judge must first inquire into whether the petitioner is being
restrained of his liberty. If he is not, the writ will be refused.
- If the alleged cause is thereafter found to be unlawful, then the writ
should be granted and the petitioner discharged. Needless to state, if
otherwise, again the writ will be refused.
- Judicial discretion is called for in its issuance and it must be clear to the
judge to whom the--petition is presented that, prima facie, the petitioner
is entitled to the writ.
 Grounds for suspension of the privilege of the writ of
habeas corpus under the Constitution
1. Invasion, when public safety requires it;
2. Rebellion, when public safety requires it (Article VII, Section 18 of the 1987
Constitution)

In cases of illegal confinement or detention

General rule: The release, whether permanent or temporary, of a detained person renders
the petition for habeas corpus moot and academic.

Exception: When there are restraints attached to his release which precludes freedom of
action, in which case the court can still inquire into the nature of his involuntary restraint
(Villavicencio v. Lukban, G.R. No. L- 14639, March 25, 1919).
In Bagtas v. Hon. Ruth C. Santos, et al., (G.R. No. 166682, November 27, 2009), the Court
held that the mere production of child in the habeas corpus case does
not warrant outright dismissal. A trial to determine who had rightful custody over the child
should be conducted by the court.
 Voluntary Restraint
General Rule: Writ not available if restraint is voluntary (Kelly v. Director of Prisons, G.R.
No. L-20478, March 14, 1923).
Exception: Writ will lie to enable the parents (or person having substituted parental
authority) to recover custody of a minor child although she is in custody of a 3rd person
on her own volition (Tijing v. Court of Appeals, G.R. No. 125901, March 8, 2001).
Note: Voluntariness is viewed from the point of view of the person entitled to custody.

When petition for habeas corpus not proper:

1. For asserting or vindicating denial of right to bail;
2.For correcting errors in appreciation of facts/appreciation of law.

Whether the petition for the writ of habeas corpus may be properly filed
together with the petition for certiorari and mandamus:
The writs of habeas corpus and certiorari may be ancillary to each other where necessary to give
effect to the supervisory powers of the higher courts. Hence, a writ of habeas corpus may be
used with the writ of certiorari for the purpose of review (Galvez v. Court of Appeals, G.R. No.
114046, October 24, 1994).
SECTION 2: WHO MAY GRANT THE WRIT
The RTC, CA, and SC have concurrent jurisdiction to issue writs of habeas
corpus. The MTC, by virtue of special jurisdiction under B.P. Blg. 129, can
issue the writ in case there is no available RTC judge. Hierarchy of courts is
not observed.

The writ issued by the RTC is enforceable within its territorial jurisdiction.
While the writ issued by CA or Sc is enforceable anywhere in the
Philippines.

The Sandiganbayan may issue writs of habeas corpus only if it is in aid of

its appellate jurisdiction.

This provision is another exception to the rule that processes of the

Regional Trial Court are enforceable throughout the Philippines (Regalado,
p. 176).
Family Courts have exclusive jurisdiction to issue writs of habeas
corpus involving custody of minors.

The use of habeas corpus, not a petition for mandamus, to test the
legality of an alien’s detention and proposed deportation from the
Philippines is a settled practice because aside from being thorough
and complete, it affords prompt relief from unlawful imprisonment
(Bisschop v. Galang, G.R. No. L-18365, May 31, 1963).

A petition for habeas corpus cannot be granted if the accused has only
served the minimum of his sentence as he must serve his sentence up
to its maximum term (Office of the Court Administrator v. Judge Perello, A.M.
No. RTJ-05-1953, 24 December 2008).
Scope of effectivity
Collegiate Court RTC
Enforceable Enforceable only
throughout the within
Philippines. their respective
judicial
region.

Returnable to any Returnable only to

court. itself.
Jurisdiction in cases of habeas corpus with respect to
custody of minors:

Although the Family Court where the petitioner resides or where the minor
may be found has exclusive and original jurisdiction to hear petitions for
habeas corpus with respect to custody of minors, the Supreme Court and
the Court of Appeals can take cognizance of such petition in order that it
can be enforceable within the Philippines.

However, the return can be heard in the FC/RTC (if there is no FC in the
judicial region) and there is no need to file a separate petition for custody
because the issue can be ventilated in the petition for the writ.
SECTION 3: What are the REQUISITES FOR APPLICATION
THEREFOR
Who may apply:
1. Party for whose relief it is intended; or
2. Some person on his behalf.

Verified petition must set forth:

1. That the person in whose behalf the application is made
is imprisoned or restrained of his liberty;
2. The name of the person detaining another;
3.The place where he is imprisoned or restrained of his
liberty;
4. The cause of his detention;
5. The verified petition must be signed.
Note: The formalities required for petitions for habeas corpus must be
construed liberally. Strict compliance with the technical requirements for a
habeas corpus petition may be dispensed with where the allegations in the
application are sufficient to make out a case for habeas corpus (Fletcher v.
Director of Bureau of Corrections, UDK-14071, July 17, 2009).

The petition for the writ is required to be verified but the defect in form will not
be fatal. In fact, the Supreme Court has held that it is the duty of a court to
issue the writ if there is evidence that a person is unjustly restrained of his
liberty within jurisdiction even if there is no application (Villavicencio v. Lukban,
supra).

It is necessary, however, that the person in whose behalf the petition is filed is
under actual and effective restraint or deprivation of liberty (Gonzales v. Viola,
G.R. No. L-43195, August 23, 1935).
SECTION 4. WHEN WRIT NOT ALLOWED OR
DISCHARGED AUTHORIZED
1. If jurisdiction appears after the writ is allowed;
2. If the person is in the custody of an officer under process issued by a court
or by virtue of a judgment or order of a court of record which has jurisdiction to
issue the process, render the judgment or make the order;
3. If the person is charged with or convicted of an offense in the Philippines;
4. If the person is suffering imprisonment under lawful judgment.
5. Three (3)-day detention of a suspect for three (3) days without charge (Sec.
18, Ra No. 9372 “Human Security Act of 2007” to take effect on July 14, 2007).
 Supervening events may bar release:
Even if the arrest of a person is illegal, supervening events may bar release
or discharge from custody. What is to be inquired into is the legality of his
detention as of, at the earliest, the filing of the application for the writ of
habeas corpus, for even if the detention is at its inception illegal, it may, by
reason of some supervening events such as the instances mentioned in
Sec. 4, be no longer illegal at the time of the filing of the application
(Velasco v. Court of Appeals, G.R.No. 118644, July 7, 1995).

Note:
Posting of bail is not a waiver.
Under the Revised Rules on Criminal Procedure, as application for bail is
not necessarily a bar to challenge the validity of the arrest (Sec. 26, Rule
114).
 SECTION 5. WHEN WRIT MUST BE GRANTED AND
ISSUED
Procedure for grant of writ:
1. Verified petition signed by the party for whose relief it is intended; or by some other
person in his behalf;
2.Allowance of writ;
3.Command officer to produce;
4. Service of writ by sheriff or other officer;
5.Return; and
6.Hearing on return.

General Rule: If it appears that the writ should issue, the clerk of court issues the writ
under the court’s seal (Sec. 5, Rule 102).
Exception: In emergency cases, the judge may issue the writ under his own hand and
deputize any person to serve it.
The law even makes it the duty of the court to grant the writ of habeas corpus, if there is
evidence that a person is unjustly restrained within the court’s jurisdiction, though no
application for the writ was made (Villavicencio v. Lukban,G.R. No. L-14639, March 25,1919).
SECTION 6. TO WHOM WRIT DIRECTED, AND WHAT
TO REQUIRE
A.In case of imprisonment or restraint by an officer:
1. The writ shall be directed to him;
2.The officer shall produce the body of the person before the court.
3. State the cause of detention and prove his authority.

B.In case of imprisonment or restraint by a person not an officer:

1. The writ shall be directed to an officer;
2. The officer shall take and produce the body of the person before the
court;
3. The officer shall summon the person detaining another to appear before
the court to show the cause of the imprisonment or restraint.
SECTION 7. HOW PRISONER DESIGNATED AND
WRIT SERVED
How service is made:
1. By leaving the original of the writ with the person to whom it is directed
or to any person having custody if the former cannot be found or has not
the person in his custody; and

2.By preserving a copy on which to make return of service. The writ itself
plays the role of summons in ordinary actions; court acquires jurisdiction
over the person of the respondent by mere service of writ.
SECTION 8. HOW WRIT EXECUTED AND
RETURNED
General rule: Officer to whom writ is directed shall convey the detained person on
the day specified in the writ:
1. Before the judge who allowed the writ;
2. If he is absent, before any judge of the same court.
Exception: If the person to be produced has sickness or infirmity such that he
cannot be brought before the court without danger.
Officer shall:
1. Convey the person so imprisoned before the judge, unless from sickness or
infirmity, such person cannot, without danger be brought before the court.
2. Make the return of the writ together with the day and the cause of caption or
restraint.
SECTION 9. DEFECT OF FORM
No writ can be disobeyed for defect of form if it
sufficiently states:
1. The person in whose custody or under whose restraint
the party imprisoned or restraint is held; and
2. The court or judge before whom he is to be brought.
 SECTION 10. CONTENTS OF
RETURN
1. Whether he has or has not the party in his custody or power, or under restraint;
2. If he has the party in his custody or power, or under restraint, the authority and the
true and whole cause thereof, set forth at large, with a copy of the writ, order,
execution, or other process, if any, upon which the party is held;
3. If the party is in his custody or power or is restrained by him, and is not produced,
particularly the nature and gravity of the sickness or infirmity of such party by
reason of which he cannot, without danger, be brought before the court or judge;
4. If he has had the party in his custody or power, or under restraint, and has
transferred such custody or restraint to another, particularly to whom, at what time,for
what cause, and by what authority such transfer was made.
SECTION 11. RETURN TO BE SIGNED AND SWORN TO
SECTION 12. HEARING OF RETURN.
ADJOURNMENTS

1. His remedy, upon the return of the writ, the court must immediately hear the
case.
2. The hearing MAY be adjourned by the court for good causes, provided that
conditions upon the safekeeping of the detained person is laid.
3. If the detained person cannot be produced before the court, the officer of
person detaining must satisfy the court of the gravity of the alleged sickness or
infirmity.
4. During the hearing, the court shall disregard matters of form and
technicalities of the authority or order of commitment.

The failure of petitioners to file a reply to the return of the writ warrants the
dismissal of the petition because unless controverted, the allegations on the return
are deemed to be true or admitted (Florendo v. Javier, G.R. No. L-36101,
June 29, 1979).
SECTION 13. WHEN THE RETURN EVIDENCE, AND
WHEN ONLY A PLEA
If detention is by public authority, the return is considered prima facie
evidence of the validity of the restraint and the petitioner has the
burden of proof to show that the restraint is illegal. As per Rule 131 on
legal presumption that the duty of a public officer is regularly
performed.

If detention is by reason of private authority, the return is considered

only a plea of the facts asserted therein and the person responsible
for the detention has the burden of proof to establish that the detention
is legal and justified.
 SECTION 14. WHEN PERSON LAWFULLY
IMPRISONED RECOMMITTED, AND WHEN LET TO
BAIL
Habeas corpus would not lie after the Warrant of Commitment was issued by the court on the basis of
the Information filed against the accused (Ilagan v. Enrile, G.R. No. 70748, October 21, 1985).

Once a person detained is duly charged in court, he may no longer question his detention through a
petition for issuance of a writ of habeas corpus. Would be to quash the information and/or the warrant of
arrest duly issued.

The term “court” includes quasi-judicial bodies of governmental agencies authorized to order the
person’s confinement, like the Deportation Board of the Bureau of Immigration (Go v. Ramos, G.R. No.
167569, 4 September 2009).

If the offense is punishable by death, the person lawfully detained shall not be released, discharged or
bailed. If the offense is not punishable by death, he MAY be recommitted to imprisonment of admitted to
bail in the discretion of the court or judge (Sec. 14, Rule 102).
 SECTION 15. WHEN PRISONER DISCHARGED IF NO
APPEAL
If one is unlawfully imprisoned, the court shall order his discharge but it shall not be
effective until a copy of the order has been served on the officer or person detaining
the prisoner. If the person detaining him does not appeal, the prisoner shall be
released.

Period of appeal:
Within 48 hours from notice of the judgment or final order appealed from (Sec. 3, Rule
41).
Form of appeal is by notice of appeal.

The release contemplated under the writ of habeas corpus is one which is free from
any involuntary restraint. When the person so released continues to be denied of one
or more of his constitutional freedoms, where there is present denial of due process, or
where the restraints are not merely involuntary but appear to be unnecessary, the
person concerned or those acting in his behalf may still avail themselves again of the
privilege of the writ. (Moncupa v. Enrile, G.R. No. 63345, January 30, 1986).
 SECTION 16. PENALTY FOR REFUSING TO ISSUE
WRIT, OR FOR DISOBEYING THE SAME
A penalty of PhP1,000 and may be punished for
contempt.
Punishable acts or omissions
1. The Clerk of Court refuses to issue the writ after
allowance by the court and demand;
2. The person directed in the writ:
a. Neglects or refuses to obey or make the return;
b. Makes a false return;
c. Refuses to deliver a true copy of the warrant/order of commitment, within
6 hours after demand (Sec. 16).
3. Imprisoning a person set at liberty by the writ, for the same offense (Sec.
17).
4. Removing a prisoner from one custody to another (Sec.
18).
 SECTION 17. PERSON DISCHARGED NOT TO BE
AGAIN IMPRISONED

General Rule: A person who is set at liberty upon a writ of habeas corpus shall not
be again imprisoned for the same offense.
Exception: He is imprisoned by virtue of lawful order or process of court having
jurisdiction of the offense or cause.
Whether the State can reserve the power to re-arrest a person for an offense after
a court of competent jurisdiction has absolved him of the offense:

Ruling: Such a reservation is repugnant to the principle that the government is one
of laws and not of men. Under this principle, the moment a person is acquitted of a
criminal charge he can no longer be detained or rearrested for the same offense
(Toyoto v. Ramos, G.R. No. L-69270 October 15, 1985).
SECTION 18. WHEN PRISONER MAY BE REMOVED
FROM ONE CUSTODY TO ANOTHER

1. By legal process;
2. Prisoner is delivered to an inferior officer to carry to jail;
3. By order of proper court or judge directing that he be
removed from one place to another within the
Philippines for trial;
4. In case of fire, epidemic, insurrection or other necessity
or public calamity.
SECTION 19. RECORD OF WRIT,
FEES AND COSTS
 RULE ON CUSTODY OF MINORS
AND WRIT OF HABEAS CORPUS IN
RELATION TO THE CUSTODY OF
MINORS
(A.M. No. 03-04-04-SC)
Who may file the petition: A verified petition for the rightful custody of a
minor may be filed by any person claiming such right (Sec.2).

Where to file petition: Family Court of the province or city where the petitioner
resides or where the minor may be found (Sec.3).
The petition may however be filed with the regular court in the absence of the
presiding judge of the Family Court, provided however that the regular court
shall refer the case to the Family Court as soon as its presiding judge returns to
duty.
The petition may also be filed with the SC, CA, or with any of its members and, if
so granted the writ shall be enforceable anywhere in the Philippines. The writ
may be made returnable to a Family Court or to any regular court within the
region where the petitioner resides or where the minor may be found for
hearing and decision on the merits.
Contents of verified petition
1. The personal circumstances of the petitioner and respondent;
2. The name, age and present whereabouts of the minor and his or her
relationship to the petitioner and respondent;
3. The material operative facts constituting deprivation of custody;
4. Such other matters which are relevant to the custody of minor (Sec.4).

In Sombong v. Court of Appeals, et al. (G.R. No. 111876, January 31, 1996) the
Court laid down the following requisites in petitions for habeas corpus involving
minors:
1. That the petitioner has the right of custody over the minor;
2. That the rightful custody of the minor is being withheld from the petitioner by
the respondent; and
3. That it is to the best interest of the minor concerned to be in the custody of
petitioner and not that of the respondent.
Motion to dismiss is not allowed except on the ground of lack of jurisdiction over
the subject matter or the parties (Sec.6).

Respondent must file a verified answer within 5 days from

the service of summons and copy of the petition (Sec.7).

Pre-trial is mandatory (Sec.9).

Effects of failure to appear at the pre-trial

1. If the petitioner fails to appear personally at the pre-trial, the case shall be
dismissed, unless his counsel or a duly authorized representative appears in court
and proves a valid excuse for the non-appearance of the Petitioner;

2. If the respondent has filed his answer but fails to appear at the pre-trial, the
petitioner shall be allowed to present his evidence ex-parte. The court shall then
render judgment on the basis of the pleadings and the evidence thus presented (Sec.
11).

Failure to file the pre-trial brief or to comply with its required content shall have the
same effect as failure to appear at the pre-trial (Sec. 10).
Provisional order awarding custody: As far as practicable, the following order of
preference shall be observed in the award of custody: (BEG BAO)

1.Both parents jointly;

2. Either parent, taking into account all relevant considerations, especially the
choice of the minor over seven years of age and of sufficient discernment unless
the parent chosen is unfit;
3. The grandparent or if there are several grandparents, the grandparent chosen by
the minor over seven years of age and of sufficient discernment, unless the
grandparent chosen is unfit or disqualified;
4. The eldest brother or sister over twenty one (21) years of age unless he or she is
unfit or disqualified;
5. The actual custodian of the minor over twenty one (21) years of age, unless the
former is unfit or disqualified; or
6. Any other person or institution the court may deem suitable to provide proper
care and guidance for the minor (Sec.13).
Temporary visitation rights: The court shall provide in its order awarding
provisional custody appropriate visitation rights to the non - custodial parent or
parents unless the court finds said parent or parents unfit or disqualified
(Sec.15).

Hold Departure Order: The minor child subject of the petition shall not be
brought out of the country without prior order from the court while the petition
is pending.
The Court, motu proprio or upon application under oath, may issue an ex parte
hold departure order (Sec.16).Note: The court may also issue a Protection
Order
(Sec.17).
Appeal : Notice of appeal within 15 days from notice of
denial of motion for reconsideration or new trial (Sec.19).
Note: No appeal shall be allowed unless a motion for
reconsideration or new trial has been filed.
Petition for Writ of Habeas Corpus
Shall be enforceable within its judicial region to which the
Family Court belongs (Sec. 20).
WRIT OF AMPARO
A.M. 07-9-12-SC
Define:
It is a remedy available to any person whose right to life,
liberty and security has been violated or is threatened with
violation by an unlawful act or omission of a public official or
employee, or of a private individual or entity. The writ was
intended to address extralegal killings and enforced
disappearances or threats thereof. (Section 1 of A.M. No.
07-9-12-SC)
What is the writ of Amparo? How is it distinguished
from the writ of Habeas Corpus? (Festin, 2020)

Answer: The writ of amparo is distinguished

from the writ of habeas corpus in that it covers
violations of constitutional and civil rights
other than the right to unlawful deprivation of
liberty, like enforced disappearances and
extralegal killings.
"EXTRALEGAL KILLINGS."

"Extralegal killings’’ are killings committed without due process of law, i.e.,
without legal safeguards or judicial proceedings. (FESTIN, 2020)

"ENFORCED DISAPPEARANCES."

They are attended by the following characteristics: an arrest, detention, or

abduction of a person by a government official or organized groups or private
individuals acting with the direct or indirect acquiescence of the government;
the refusal of the State to disclose the fate or whereabouts of the person
concerned or a refusal to acknowledge the deprivation of liberty which places
such persons outside the protection of the law. (FESTIN, 2020)
 Who May File?

The petition may be filed by the aggrieved party or by any qualified person or
entity in the following order: SECTION 2 of A.M. No. 07-9-12-SC

(a) Any member of the immediate family, namely: the spouse, children and
parents of the aggrieved party;

(b) 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

c) Any concerned citizen, organization, association or institution, if there is no

known member of the immediate family or relative of the aggrieved party

The filing of a petition by the aggrieved party suspends the right of all other
authorized parties to file similar petitions. Likewise the filing of the petition by
an authorized party on behalf of the aggrieved party suspends the right of all
others, observing the order established herein.
Where to File?
SEC. 3 of A.M. No. 07-9-12-SC
The petition may be filed on any day and at any time 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. The writ shall
be enforceable anywhere in the Philippines.
When issued by a Regional Trial Court or any judge thereof, the writ
shall be returnable 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.

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.
SEC. 4. A.M. No. 07-9-12-SC
No Docket Fees. - The petitioner shall be exempted
from the payment of the docket and other lawful
fees when filing the petition. The court, justice or
judge shall docket the petition and act upon it
immediately.
What must a petition for Writ of Amparo contain?
SEC. 5 of A.M. No. 07-9-12-SC
a. The personal circumstances of the petitioner;

b. The name and personal circumstances of the respondent responsible for the threat, act or
omission, or, if the name is unknown or uncertain, the respondent may be described by an
assumed appellation;

c. The right to life, liberty and security of the aggrieved party violated or threatened with
violation by an unlawful act or omission of the respondent, and how such threat or violation is
committed with the attendant circumstances detailed in supporting affidavits;

d. The investigation conducted, if any, specifying the names, personal circumstances, and
addresses of the investigating authority or individuals, as well as the manner and conduct of
the investigation, together with any report;

e. The actions and recourse taken by the petitioner to determine the fate or whereabouts
of the aggrieved party and the identity of the person responsible for the threat, act or omission;
and

f. The relief prayed for.

The petition may include a general prayer for other just and equitable reliefs.
Section 6 of A.M. No. 07-9-12-SC
Issuance of the Writ - Upon the filing of the petition, the court,
justice or judge shall immediately order the issuance of the writ
if on its face it ought to issue. The clerk of court shall issue the
writ under the seal of the court; or in case of urgent necessity,
the justice or the judge may issue the writ under his or her own
hand, and may deputize any officer or person to serve it. The
writ shall also set the date and time for summary hearing of the
petition which shall not be later than seven (7) days from the
date of its issuance.
How the Writ is Served?: SEC. 8
of A.M. No. 07-9-12-SC
The writ shall be served upon the respondent by a judicial
officer or by a person deputized by the court, justice or judge
who shall retain a copy on which to make a return of service. In
case the writ cannot be served personally on the respondent, the
rules on substituted service shall apply.
Within FIVE WORKING DAYS (5) after service of the writ, the
respondent shall file a verified written return together with
supporting affidavits which shall, among other things, contain
the following: SEC. 9 of A.M. No. 07-09-12-SC [AMENDED]

● The lawful defenses to show that the respondent did not violate or
threaten with violation the right to life, liberty and security of the
aggrieved party, through any act or omission

● The steps or actions taken by the respondent to determine the fate or

whereabouts of the aggrieved party and the person or persons responsible
for the threat, act or omission

● All relevant information in the possession of the respondent pertaining to

the threat, act or omission against the aggrieved party;
If the respondent is a public official or employee, the return shall further state the actions that have
been or will still be taken:

● to verify the identity of the aggrieved party;

● to recover and preserve evidence related to the death or disappearance of the person identified
in the petition which may aid in the prosecution of the person or persons responsible;

● to identify witnesses and obtain statements from them concerning the death or disappearance;

● to determine the cause, manner, location and time of death or disappearance as well as any
pattern or practice that may have brought about the death or disappearance;

● to identify and apprehend the person or persons involved in the death or disappearance; and

● to bring the suspected offenders before a competent court.

● The period to file a return cannot be extended except on highly
meritorious ground.

● The return shall also state other matters relevant to the

investigation, its resolution and the prosecution of the case.

● A general denial of the allegations in the petition shall not be

allowed.
SEC. 10 of A.M. No. 07-09-12-SC
All defenses shall be raised in the
return, otherwise, they shall be deemed
waived.
The following pleadings and motions are
prohibited: (SEC. 11 of A.M No. 07-9-12 SC)
AMENDED
a. Motion to dismiss;

b. Motion for extension of time to file opposition, affidavit, position paper and other pleadings;

c. Dilatory motion for postponement;

d. Motion for a bill of particulars;

e. Counterclaim or cross-claim;

f. Third-party complaint;

g. Reply;

h. Motion to declare respondent in default;

i. Intervention;

j. Memorandum;

k. Motion for reconsideration of interlocutory orders or interim relief

orders; and

l. Petition for certiorari, mandamus or prohibition against any

interlocutory order.
What are the elements constituting enforced
disappearance as defined under R.A. No.
9851?
The elements of enforced disappearance are as follows:

(a) that there be an arrest, detention, abduction or any form of liberty;

(b) that it be carried out by, or with the authorization, support or of, the State or a political
organization;

(c) that it be followed by the State or political organization's refusal to acknowledge or give
information on the fate or whereabouts of the person subject of the amparo petition; and,

(d) that the intention for such refusal is to remove subject person from the protection of the law for a
prolonged period of time.
WHAT IS THE NATURE OF THE
WRIT OF AMPARO?

The Writ of Amparo is an independent and summary remedy that provides rapid
judicial relief to protect the people's right to life, liberty, and security. It is
preventive in that it breaks the expectations of impunity in the commission of
these offenses, and it is curative in that it facilitates the subsequent and summary
remedy that provides rapid judicial relief to protect the people’s right to life,
liberty, and security. Having been originally intended as a response to the
alarming cases of extrajudicial killings and enforced disappearances in the country,
it serves both preventive and curative roles to address the said human rights
violations. (Lozada v. Arroyo, et al., G.R. Nos. 184379-80, April 24, 2013)
TO WHAT CASES DOES THE WRIT
OF AMPARO APPLY?
The Writ of Amparo is confined only to cases of extralegal killings and enforced
disappearances. Considering that this remedy is aimed at addressing these serious
violations of or threats to the right to life, liberty and security, it cannot be
issued on amorphous and uncertain grounds, or in cases where the alleged threat
has ceased and is no longer imminent or continuing. Instead, it must be granted
judiciously so as not to dilute the extraordinary and remedial character of the writ;
thus: The privilege of the Writ of Amparo is envisioned basically to protect and
guarantee the rights of life, liberty and security of persons, free from fears and
threats that vitiate the quality of this life. It is an extraordinary writ
conceptualized and adopted in light of and in response to the prevalence of
extralegal killings and enforced disappearances.
MAY "ANY PERSON" FILE A PETITION
FOR THE WRIT OF AMPARO?
No, while "any person" may file a petition for the writ of habeas corpus, in a petition for
the writ of amparo, the order of priority on who can file the petition should be strictly
followed.

In the case of Lorie Marie Tomas Callo v. Commissioner Jaime H. Morante, et al., G.R. No.
230324, September 19, 2017, Carpio, Acting CJ, there was no allegation nor proof that the
missing person, Parker had no immediate family members or any ascendant, descendant,
or collateral relative within the fourth civil degree of consanguinity or affinity. In fact,
no allegation was made on any of the familial relationship of Parker as only her
whereabouts from 2011 were alleged and discussed. Thus, based on the order of priority,
petitioner in this case had no legal standing to file this petition.
WHEN A PERSON IS CONSUMED BY FEAR FOR LIFE
AND LIBERTY, MAY THE WRIT OF AMPARO
FAVORABLY BE ISSUED?
Yes, it may be issued. A writ of amparo is an independent and summary remedy to
provide immediate judicial relief for the protection of a person's constitutional
right to life and liberty. When a person is consumed by fear for her life and liberty
that it completely limits her movement, the writ may be issued to secure her.

Note, however, that the source of this fear must be valid and substantiated by
circumstances, and not mere paranoia. Thus, in resolving the necessity of issuing a
writ of amparo and the corresponding protection order, the courts must look at the
overall circumstance surrounding the applicant and respondents.
IS GOVERNMENT INVOLVEMENT IN THE
DISAPPEARANCE AN
INDISPENSABLE ELEMENT?
Yes, under Section 1 of A.M. No. 07-9-12-SC, a Writ of Amparo may lie against a private individual or
entity. But even if the person sought to be held accountable or responsible in an Amparo petition is a
private individual or entity, still, government involvement in the disappearance remains an
indispensable element.

In the case of Navia v. Pardico, G.R No. 184467, June 19, 2012, petitioners are mere security guards at
the Grand Royale subdivision in Brgy. Lugam, Malolos City and their principal, the Asian Land, is a
private entity. They do not work for the government and nothing has been presented that would link
or connect them to some covert police, military, or governmental operation. To fall within the ambit
of A.M. No. 07-9-12-SC in relation to R.A. No. 9851, the disappearance must be attended by some
governmental involvement. This hallmark of State participation differentiates an enforced
disappearance case from an ordinary case of a missing person.
SPOUSES ROZELLE RAYMOND MARTIN AND CLAUDINE
MARGARET SANTIAGO v. Raffy Tulfo, Ben Tulfo, and
Erwin Tulfo, G.R.No 205039, October 21, 2015

DOCTRINE: While the foregoing rule, as per Section 1 of A.M. No. 07-9-12-SC's
first paragraph, does state that the writ is a remedy to protect the right to
life, liberty, and security of the person desiring to avail of it, the same
section's second paragraph qualifies that the protection of such rights
specifically pertain to extralegal killings and enforced disappearances or
threats thereof, which are more concrete cases that involve protection to the
rights to life, liberty and security. The two paragraphs should indeed be read
together in order to construe the meaning of the provision.
SPOUSES ROZELLE RAYMOND MARTIN AND CLAUDINE
MARGARET SANTIAGO v. Raffy Tulfo, Ben Tulfo, and Erwin
Tulfo, G.R.No 205039, October 21, 2015
In our jurisdiction, at least, the present Amparo Rule has limited the remedy as a response to
extrajudicial killings and enforced disappearances, or threats thereof.

"Extrajudicial killings," according to case law, are generally characterized as "killings

committed without due process of law, i.e., without legal safeguards or judicial proceedings,"
while "enforced disappearances," according to Section 3(g) of Republic Act No. 9851, otherwise
known as the "Philippine Act on Crimes Against International Humanitarian Law, Genocide, and
Other Crimes Against Humanity, "means the arrest, detention, or abduction of persons by, or
with the authorization, support or acquiescence of, a State or political organization followed
by a refusal to acknowledge that deprivation of freedom or to give information on the fate or
whereabouts of those persons, with the intention of removing from the protection of the law
for a prolonged period of time.”
CALLO v. COMMISSIONER MORANTE, et al.
G.R. No. 230324, September 19, 2017
For the issuance of writ of amparo, it has to be shown by
the required quantum of proof that the disappearance was
carried out by, or with the authorization, support or
acquiescence of the government or a political organization,
and that there is a refusal to acknowledge the same or to
give information on the fate or whereabouts of the missing
persons.

In a petition for the writ of amparo, the order of priority

on who can file the petition should be strictly followed.
The elements constituting enforced disappearance as defined
under RA 9851 were clearly laid down by the Court:

There be an arrest, detention, abduction or any form of liberty,

It be carried out by, or with the authorization, support or of, the state or a
political organization;

It be followed by the state refusal to acknowledge or give information on the

fate or whereabouts of the person subject of the amparo petition; and

That the intention for such refusal is to remove subject person from the
protection of the law for a prolonged period of time.

It is clear that the elements of enforced disappearance are not attendant in

this case.
May the state or any of its relevant agencies be impleaded in
the petition for writ of amparo?
Although Section 1 states that the violation may be committed by the persons therein listed (i.e.,
public official or employee, or a private individual or entity), it does not state that only the listed
persons can be made respondents. The rule does not list the State or its agencies as possible
violators simply because the State and its agencies may not be presumed to sanction such violations.

In proper circumstances, the State or any of its relevant agencies may be impleaded; otherwise, the
rule on the writ of amparo may be rendered ineffective or toothless. There may be occasions when the
remedy of the writ of amparo can be made effective only through the State and its agencies. This is
because the State is vested with the authority and responsibility for securing every inhabitants’ life,
liberty and property. After all, the State controls the legal, moral and material resources by which to
fully enforce the Constitution and the laws guaranteeing life, liberty and property.

(Republic represented by the Director of the CIDG, PNP v Regina N. Cayanan and SPO1 Rolando v.
Pascua, G.R.No.181796, November 7, 2017)
MAY A WRIT OF AMPARO BE ISSUED EVEN WHEN
A PERSON HAD ALREADY BEEN RELEASED FROM
DETENTION?
Yes, a writ of amparo may still issue in the respondent's favor notwithstanding that he
has already been released from detention. In such case, the writ of amparo is issued to
facilitate the punishment of those behind the illegal detention through subsequent
investigation and action. Verily, the petitioners failed to point to any specific measures
undertaken by them to effectively investigate the irregularities alleged by the
respondent and to prosecute those who are responsible therefor. Worse, the illegal
detention and torture suffered by the respondent were perpetrated by the members of the
Task Force themselves.

(Mamba v. Bueno, G.R. No. 191416, February 7, 2017, Bienvenido L. Reyes, Associate Justice)
IN THE MATTER OF THE PETITION FOR THE WRIT OF AMPARO AND
HABEAS DATA IN FAVOR OF NORIEL H. RODRIGUEZ V. GLORIA
MACAPAGAL-ARROYO, ET AL.

In the instant case, this court rules that respondents in

G.R.No. 191805 are responsible or accountable for the
violation of Rodriguez’s right to life, liberty, and security
on account of their abject failure to conduct a fair and
effective official investigation of his ordeal in the hands
of the military.
The Court ruled in this case that Rodriguez was successful in proving through
substantial evidence that respondents Gen. Ibrado, PDG. Verzosa, Lt. Gen.
Bangit, Maj. Gen. Ochoa, Brig. Gen. De Vera, 1st Lt. Matutina, and Lt. Col. Mina
were responsible and accountable for the violation of his rights to life,
liberty, and security on the basis of (a) his abduction, detention and torture
from 6 September to 17 September 2009, and (b) the lack of any fair and
effective official investigation as to his allegations. Thus, the privilege of the
writs of amparo and habeas data must be granted in his favor. As a result,
there is no longer any need to issue a temporary protection order, as the
privilege of these writs already as the effect of enjoining respondents in G.R.
No. 191805 from violating his rights to life, liberty, and security
REV.FR ROBERT P. REYES V. CA, SECRETARY RAUL
GONZALES, ET AL. GR.NO.182161, DECEMBER
3,2009
Here, the restriction on petitioner’s right to travel as a consequence of the
pendency of the criminal case filed against him was not unlawful. Petitioner
also failed to establish that his right to travel was impaired in the manner
and to the extent that it amounted to a serious violation of his right to life,
liberty, and security, for which there exists no readily available legal course
or remedy.

The court has already pronounced that the Writ of Amparo, in its present form,
is confined only to these two instances of “extralegal killings” and “enforced
disappearances.”
DANIEL MASANGKAY TAPUZ, ET AL. V. HON JUDGE ELMO DEL
ROSARIO G.R.NO.182484, JUNE 17, 2008

The court sees no point in separately and directly intervening through a writ
of amparo in the absence of any clear prima facie showing that the right to
life, liberty or security – the personal concern that the writ is intended to
protect – is immediately in danger or threatened, or that the danger or threat
is continuing.

Rather than acts of terrorism that pose a continuing threat to the persons of
the petitioners, the violent incidents alleged appear to the Court to be purely
property-related and focused on the disputed land.
 Section 12. The court,justice or judge
shall proceed to hear the petition ex
parte or even without the appearance of
the respondent
Effect of failure to return
SEC. 13.— The hearing on the petition shall be summary.
However, the court, justice or judge may call for a
preliminary conference to simplify the issues and determine
the possibility of obtaining stipulations and admissions from
the parties.

Summary hearing
 Interim Reliefs

Sec 14.Upon filing of the petition or at anytime before final judgment, the
court, justice or judge may grant any of the following reliefs:
1. Temporary protection order;
2. Inspection order;
3. Production order; and
4. Witness protection order
 Availability of Interim Reliefs to
Respondent

SEC. 15.:
1.Inspection order; and
2.Production order.
Section 16
The court, justice or judge 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.
The contemnor may be imprisoned or imposed a fine.

Contempt
 Burden of proof

SEC. 17. Burden of Proof and Standard of Diligence Required

● Must establish substantial evidence
● Substantial evidence is the amount of relevant evidence which a
reasonable mind might accept as adequate to support a conclusion.
Diligence required

Private individual Public employee

Ordinary diligence Extraordinary diligence

Cannot invoke
presumption of
regularity
SEC. 18 - The court shall render 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 shall grant the privilege of the writ and
such reliefs as may be proper and appropriate; otherwise,
the privilege shall be denied.

Judgement
 Appeal

SEC. 19 -
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.
The period of appeal shall be five (5) working days from the date of notice
of the adverse judgment.
 Archiving and Revival of Cases

SEC. 20. - The court shall not dismiss the petition, but shall archive it, if
upon its determination it cannot proceed for a valid cause such as the
failure of petitioner or witnesses to appear due to threats on their lives.
 Institution of Separate Actions

SEC. 21. - This Rule shall not preclude the filing of separate criminal, civil or
administrative actions.
Note: Criminal, civil or administrative actions can still be filed
 SEC. 22
When a criminal action has been commenced, no separate
petition for the writ shall be filed. The reliefs under the writ
shall be available by motion in the criminal case.

Effect of Filing of a Criminal Action

 Consolidation

SEC. 23
When a criminal action is filed subsequent to the filing of a petition for the
writ, the latter shall be consolidated with the criminal action.
When a criminal action and a separate civil action are filed subsequent to a
petition for a writ of amparo, the latter shall be consolidated with the
criminal action.
Note:
There is a consolidation between the criminal action or separate civil
action with the petition for the writ filed if filed subsequently
 Infant Julian Yusay Caram v. ATTY. MARIJOY D.
SEGUL et al
G.R. No.193652, August 5, 2014

DOCTRINE:

Since it is extant from the pleadings filed that

what is involved is the issue of child custody
and the exercise of parental rights over a
child, who, for all intents and purposes, has
been legally considered a ward of the state,
the Amparo rule cannot be properly
applied.
 SPS.PADOR v. BRGY. CAPT. ARGAYAN et al

GR 183460,March 12, 2013

DOCTRINE:

The Writ of Amparo is intended to address violations of or threats

to the rights to life, liberty or security, as an extraordinary and
independent remedy beyond those available under the prevailing
Rules, or as a remedy supplemental to those Rules.

What it is not, is a writ to protect concerns that

are purely properly or commercial. Neither it is a
writ that we shall issue on amorphous and uncertain
grounds.
 ELISEO AGUILAR v. DEPARTMENT OF JUSTICE et al

G.R. No.193652, August 5, 2014

DOCTRINE:

The historical prevalence of his deplorable

practice has even led to the inception and
eventual adoption of the Rules on Amparo
better protect the sacrosanct right of every
person to his life and liberty and not to be
deprived of such without due process of
law.
 LOZADA v. GLORIA MACAPAGAL- ARROYO

GR 184379-80, April 24, 2012

DOCTRINE:

In the present case, the totality of the evidence adduced by petitioners failed to
meet the threshold of substantial evidence.

Sifting through all the evidence and allegations presented the crux of the case boils
down the assessing the veracity and credibility of the parties diverging claims as to
what actually transpired.
In this regard, the Supreme Court is an agreement with the factual findings
of the Court of Appeals to the extent that petitioner Lozada was not
illegally deprived of his liberty from the point when he disembarked from
the aircraft up to the time he was led to the departure area of the airport,
as he voluntarily submitted himself to the custody of respondents.
 THE SECRETARY OF NATIONAL DEFENE v. RAYMOND
and REYNALDO MANALO

GR 180906, October 7, 2008

DOCTRINE:

Nonetheless, the circumstances of respondents

abduction, detention, torture and escape reasonably
support a conclusion that there is an apparent threat
that they will again be abducted, tortured, and this
time, even executed.

These constitute threats to their liberty, security,

and life, actionable through a petition for a Writ of
Amparo.
 CANLAS v. NAPICO HOMEOWNERSASS’N., I-XII, INC

554 SCRA 208 (2008)

DOCTRINE:

The threatened demolition of a dwelling by

virtue of a final judgment of the court, which
in this case was affirmed with the finality by
this Court is not included among the
enumeration under the Section 1 of the rule
on the writ of Amparo.
WRIT OF HABEAS DATA
A.M. 08-1-16-SC
Background
1. The judicial remedy, approved on Jan. 22, 2008, and which took
effect on Feb. 2, 2008, was crafted amid an alarming rise in the
number of forced disappearances and extrajudicial executions,
including the murders of leftist militants and journalists during
the Arroyo administration. (Phil. Daily Inquirer, Nov. 8,2016)
 (Felixberto Castillo, et al vs Amanda
Cruz)
1. The coverage of the writ is limited to the protection of rights to life, liberty
and security. And the writs cover not only actual but also threats of
unlawful acts or omissions.
2. To be covered by the privilege of the writ, respondents must meet the
threshold requirement that their right to life, liberty and security is violated
or threatened with an unlawful act or omission. Evidently, the present
controversy arose out of a property dispute between the Provincial
Government and respondents. Absent any considerable nexus between
the acts complained of and its effect on respondents’ right to life, liberty
and security, the Court will not delve on the propriety of petitioners’ entry
into the property.
 SECTION 1
1. The writ of habeas data is a remedy available to any person
whose right to privacy in life, liberty or security is violated or
threatened by an unlawful act or omission of a public official or
employee, or of a private individual or entity engaged in the
gathering, collecting or storing of data or information regarding
the person, family, home and correspondence of the
aggrieved party.
 SECTION 1
1. Purpose:
✔ To protect by means of judicial complaint the image,
privacy, honor, information and freedom of information of an
individual.

✔ To safeguard individual freedom from abuse in the

information age by means of an individual complaint
presented in a constitutional court.
SECTION 1
Directed against:
○ Public officials or employees;
○ private individual or entity engaged in the
gathering, collecting or storing of data or
information regarding the person, family, or
home.
SECTION 1
Who may file?
i. Any aggrieved party
Or in cases of extra-legal killings or and enforced
disappearances:
ii. Any member of the immediate family of the aggrieved
party, namely: the spouse, children and parents; or
iii. 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.
Extra-Legal Killing Definition(A.O.
No. 35)
1. a. The victim was:
a. i. a member of, or affiliated with an organization, to include political,
environmental, agrarian, labor, or similar causes; or
b. ii. an advocate of above-named causes; or
c. iii. a media practitioner or
d. iv. person(s) apparently mistaken or identified to be so.
2. b. The victim was targeted and killed because of the actual or
perceived membership, advocacy, or profession;
3. c. The person/s responsible for the killing is a state agent or
non-state agent;
4. d. The method and circumstances of attack reveal a deliberate
intent to kill.
Enforced Disappearance Definition
1. It refers to the arrest, detention, abduction or any other form of
deprivation of liberty committed by agents of the State or by
persons or groups of persons acting with the authorization,
support or acquiescence of the State, followed by a refusal to
acknowledge the deprivation of liberty or by concealment of
the fate or whereabouts of the disappeared person, which
places such person outside the protection of the law.
(Sec. 3 of RA No. 10353)
 Where to file the petition?
1. (i) Regional Trial Court where the respondent or petitioner
resides
2. (ii) The Regional Trial Court which has jurisdiction over the
place where the data or information is gathered, collected or
stored.
3. (iii) The Supreme Court, Court of Appeals or the
Sandiganbayan when the action concerns public data files of
government offices’. (Section 3)
 Enforceability of the writ
1. The writ is enforceable anywhere in the Philippines. (Section 4)
Payment of Docket Fees
1. No fee shall be collected from an indigent petitioner. (Section 5)
 Contents of the Writ
1. A. The personal circumstances of the petitioner and the
respondent;
2. B. The manner the right to privacy is violated or threatened and
how it affects the right to life, liberty or security of the aggrieved
party;
3. C. The actions and recourses taken by the petitioner to secure
the data or information;
4. D. The location of the files, registers or databases, the
government office, and the person in charge, in possession or in
control of the data or information, if known;
Contents of the Writ
E. The reliefs prayed for, which may include the updating,
rectification, suppression or destruction of the database or
information or files kept by the respondent.
In case of threats, the relief may include a prayer for an
order enjoining the act complained of; and
F. Such other relevant reliefs as are just and equitable.
(Section 6)
 Issuance of the Writ
✔ Upon the filing of the petition, the court, justice, or judge shall
immediately order the issuance of the writ if on its face it ought to
issue.
✔ The clerk of court shall issue the writ under the seal of the court and
cause it to be served within three (3) days from the issuance.
✔ In case of urgent necessity, the justice or judge may issue the writ
under his or her own hand, and may deputize any officer or person
serve it.
✔ The writ should contain the date and time for summary hearing of the
petition. (Section 7)
 Service of the Writ
1. The writ shall be served upon the respondent by a judicial officer
or by a person deputized by the court, justice or judge who shall
retain a copy on which to make a return of service.
2. The rules on substituted service shall apply in case the writ
cannot be served personally on the respondent. (Section 9)
 May a petition for habeas data be
filed if there is a pending criminal
action?
1. When a criminal action has been commenced, no separate petition
for the writ shall be filed. The reliefs under the writ shall be available
to the aggrieved party by motion in the criminal case. The procedure
under this rule shall govern the disposition of the reliefs available
under the writ of habeas data. (Section 22)
 What if a criminal and a separate
civil action is filed after the petition
is filed?
1. The filing of a petition for the writ of habeas data shall not
preclude the filing of separate criminal, civil or administrative
actions. (Section 20)
 Consolidation of Actions
1. When a criminal action is filed subsequent to the filing of a petition
for the writ, the latter shall be consolidated with the criminal action.
When a criminal action & a separate civil action are filed subsequent
to a petition for the writ, the petition shall be consolidated with the
criminal action. (Section 21)
 Respondent’s Return
1. The respondent shall file a verified written return together with
supporting affidavits within five (5) working days from service of
the writ.
Contents of the Return
(a) The lawful defenses such as national security, state secrets, privileged
communications, confidentiality of the source of information of media and
others;
(b) In case of respondent in charge, in possession or in control of the data
or information subject of the petition;
(i) a disclosure of the data or information about the petitioner, the
nature of such data or information, and the purpose for its collection;
ii) the steps or actions taken by the respondent to ensure the security
and confidentiality of the data or information; and,
(iii) the currency and accuracy of the data or information held; and,
(c) Other allegations relevant to the resolution of the proceeding.
(Section 10)
 Failure to File Return
1. The court, justice or judge shall proceed to hear the petition ex parte,
granting the petitioner such relief as the petition may warrant unless
the court in its discretion requires the petitioner to submit evidence.
(Section 14)
Consequence in Refusing to Make a
Return or Making False Return
1. The court, justice or judge may punish with imprisonment or fine a
respondent who commits contempt by making a false return, or
refusing to make a return or any person who otherwise disobeys or
resists a lawful process or order of the court. (Section 11)
Prohibited Motions and Pleadings
(a) Motion to dismiss;
(b) Motion for extension of time to file return, opposition,
affidavit, position paper and other pleadings;
(c) Dilatory motion for postponement;
(d) Motion for a bill of particulars;
(e) Counterclaim or cross-claim;
(f) Third-party complaint;
Prohibited Motions and Pleadings
(g) Reply;
(h) Motion to declare respondent in default;
(i) Intervention;
(j) Memorandum;
(k) Motion for reconsideration of interlocutory orders or interim
relief orders; and
(l) Petition for certiorari, mandamus or prohibition against any
interlocutory order. (Section 13)
 Hearing in the Chamber
1. It may be conducted where the respondent invokes the defense that
the release of the data or information in question shall compromise
national security or state secrets, or when the data or information
cannot be divulged to the public due to its nature or privileged
character. (Section 12)
 Nature of the Hearing
1. The hearing on the petition shall be summary. However, the
court, justice or judge may call for a preliminary conference to
simplify the issues and determine the possibility of obtaining
stipulations and admissions from the parties. (Section 15)
 Period in which the court must
decide
1. It should be resolved within ten (10) days from the time the
petition is submitted for decision. (Section 16)
 Judgment of the Case
1. If the allegations in the petition are proven by substantial
evidence, the court shall:
✔ A. enjoin the act;
✔ B. order the deletion, destruction or rectification of the
erroneous data or information and;
✔ C. grant reliefs as may be just and equitable.
▪ If no substantial evidence, then it must be denied. (Section 16)
 How is a Decision Appealed?
✔ Any party may appeal from the judgment or final order to
the Supreme Court under Rule 45.
✔ The appeal may raise questions of fact or law or both.
✔ The period of appeal shall be five (5) days from the date of
notice or judgment or final order. (Section 19)
JURISPRUDENCE
Gamboa v. Chan

G.R. No. 193636

July 24, 2012
GAMBOA VS CHAN
GR NO. 193636
 FACTS
1. Gamboa alleged that the PNP–Ilocos Norte conducted a
series of surveillance operations against her and her aides,
and classified her as someone who keeps a Private Army
Group. Purportedly without the benefit of data verification,
PNP–Ilocos Norte forwarded the information gathered on her
to the Zeñarosa Commission, thereby causing her inclusion in
the Report’s enumeration of individuals maintaining PAGs.
Contending that her right to privacy was violated and her
reputation maligned and destroyed, Gamboa filed a Petition
for the issuance of a writ of habeas data against respondents
in their capacities as officials of the PNP-Ilocos Norte.
 ISSUE
1. Whether or not the petition for the issuance of writ of habeas data
is proper when the right to privacy is invoked as opposed to the
state’s interest in preserving the right to life, liberty or security.
 RULING
1. The petition was denied.
2. The writ of habeas data is an independent and summary remedy
designed to protect the image, privacy, honor, information, and freedom
of information of an individual, and to provide a forum to enforce one’s
right to the truth and to informational privacy. It seeks to protect a
person’s right to control information regarding oneself, particularly in
instances in which such information is being collected through unlawful
means in order to achieve unlawful ends. It must be emphasized that in
order for the privilege of the writ to be granted, there must exist a nexus
between the right to privacy on the one hand, and the right to life, liberty
or security on the other.
RULING
1. In this case, the Court ruled that Gamboa was unable to prove
through substantial evidence that her inclusion in the list of
individuals maintaining PAGs made her and her supporters
susceptible to harassment and to increased police surveillance. In
this regard, respondents sufficiently explained that the investigations
conducted against her were in relation to the criminal cases in which
she was implicated. As public officials, they enjoy the presumption of
regularity, which she failed to overcome. The state interest of
dismantling PAGs far outweighs the alleged intrusion on the private
life of Gamboa, especially when the collection and forwarding by the
PNP of information against her was pursuant to a lawful mandate.
Therefore, the privilege of the writ of habeas data was denied.
JURISPRUDENCE
LEILA M DE LIMA v. PRESIDENT RODRIGO R. DUTERTE

G.R. No. 227635

October 15, 2019

DE LIMA VS DUTERTE
GR NO. 227635
 FACTS
1. A key agenda of the Duterte Administration was the relentless
national crackdown on illegal drugs. This prompted several human
rights advocates to heavily criticize the strategies and devices
forthwith adopted by law enforcement agencies in pursuing the
crackdown. Among the vocal critics of the crackdown was Sen. Leila
De Lima.
2. Sen. De Lima delivered a privilege speech on the floor of the Senate
calling a stop to the alleged extrajudicial killings committed in the
course of the crackdown, and urging her colleagues in the Senate to
conduct investigations of the alleged victims.
3. In response, President Duterte issued a number of public statements
against Sen. De Lima, including denunciations of her corruption and
immorality. The statements prompted her to initiate this petition for
the issuance of a writ of habeas data against President Duterte.
 FACTS
1. Sen. De Lima concludes that taking all the public statements of the
President into consideration the issuance of the writ of habeas data
is warranted because there was a violation of her rights to privacy,
life, liberty, and security, and there is a continuous threat to violate
her said rights in view of President Duterte's declaration
 ISSUE
1. Whether the incumbent Chief Executive be held liable to the court
even for the limited purpose under the Rules on the Writ of Habeas
Data.
 RULING
1. The petition was dismissed.
2. Presidential immunity in this jurisdiction attaches during the entire
tenure of the President. The immunity makes no distinction with
regard to the subject matter of the suit; it applies whether or not
the acts subject matter of the suit are part of his duties and
functions as President. Furthermore, no balancing of interest has
ever been applied to Presidential immunity under our
jurisprudence.
 Sample of
Writ of Habeas Data
 
(Sec 1, Rule 7 of the Rules of Procedure for Environmental Cases,
A.M. No. 09-6-8-SC, effective April 29, 2010)
(Section 2. Rule 7 of the Rules of Procedure for
Environmental Cases, A.M. No. 09-6-8-SC, effective
April 29, 2010)
Section 9.
Section 12
 Illustrative Case
HON. RAMON JESUS P. PAJE, et al. v.HON. TEODORO A. CASIÑO, G.R. No. 207257, February 3,
2015. In exceptional cases, a writ of kalikasan may be availed of to challenge defects in the
Environmental Compliance Certificate (ECC) provided that (1) the defects are causally linked or
reasonably connected to an environmental damage of the nature and magnitude contemplated
under the Rules on Writ of Kalikasan, and (2) the case does not violate, or falls under an
exception to, the doctrine of exhaustion of administrative remedies and/or primary jurisdiction.
The writ of kalikasan is principally predicated on an actual or threatened violation of the
constitutional right to a balanced and healthful ecology, which involves environmental damage
of a magnitude that transcends political and territorial boundaries.
A party, therefore, who invokes the writ based on alleged defects or
irregularities in the issuance of an ECC must not only allege and prove
such defects or irregularities, but must also provide causal link, or at
least, a reasonable connection between the defects or irregularities in
the issuance of an ECC and the actual or threatened violation of the
constitutional right to a balanced and healthful ecology of the
magnitude contemplated under the Rules.
TABLE OF COMPARISON: WRITS OF HABEAS
CORPUS, AMPARO, HABEAS DATA, AND
KALIKASAN
● Rule 103 ●
Change of name

● Rule 108
Cancellation/Correction of
Entries in the Civil Registrar

● RA 9048, as amended
by RA 10172
Clerical Error Act
NAME OF A PERSON
A word or combination of words by
which he is known and identified, and
distinguished from others, for the
convenience of the world at large in
addressing him, or in speaking of or
dealing with him.
It is both of personal as well as public
interest that every person must have
a name.
(Republic v. Hernandez, G.R. No. 117209, [February 9, 1996], 323
PHIL 606-642)
PARTS OF A NAME
1. The given or proper name is that which is given to the individual at
birth or at baptism, to distinguish him from other individuals.
2. The surname or family name is that which identifies the family to
which he belongs and is continued from parent to child.

The official name of a person is that given in the civil register. That is his
name in the eyes of the law.
(Republic v. Hernandez, G.R. No. 117209, [February 9, 1996], 323 PHIL 606-642)

Q: What is the purpose of a middle name?

CHARACTERISTICS OF A NAME
1. It is absolute, intended to protect the individual from being confused
with others.
2. It is obligatory in certain respects, for nobody can be without a name.
3. It is fixed, unchangeable, or immutable, at least at the start, and may
be changed only for good cause and by judicial proceedings.
4. It is outside the commerce of man, and, therefore, inalienable and
intransmissible by act inter vivos or mortis causa.
5. It is imprescriptible.
(Julian Lin Wang v. Cebu City Civil Registrar, G.R. No. 159966, [March 30, 2005], 494 PHIL 149-163)
Difference in baptismal name
and name in civil registry
The real name of a person is that given to him in the civil register, not
the name by which he was baptized in his church or by which he has been
known in the community, or which he has adopted.
Baptismal names have never been recognized in the law and this practice
would violate the rule and policy established.
(Chomi v. Local Civil Registrar of Manila, G.R. No. L-9203, [September 28, 1956], 99 PHIL 1004-1008 )
Distinguish …

To correct To change
"to make or set aright; to "to replace something
remove the faults or error with something else of the
from." same kind or with
something that serves as
a substitute.”

(Republic v. Mercadera, G.R. No. 186027, [December 8, 2010], 652 PHIL 195-214)
RULE 103
CHANGE OF NAME
 Art. 376 of the New Civil Code

No person can change his name or surname

without judicial authority.

Statutory basis
● RTC (Sec. 19 (7), BP Blg 129)
● Venue: Place where the petitioner resides

Jurisdiction and Venue

Must the civil registrar be impleaded in a case governed by R103?

No.
There is no need to implead the civil registrar for a change of name
under R103, unlike the correction or cancellation of entry of name
under R108.
BUT, a copy of the judgment or order rendered pursuant to R103 shall
be given to the civil registrar of the municipality or city where the court
issuing the same is situated, who shall forthwith enter the same in the
civil register. (Sec. 6, Rule 103 ROC)
 Nature

A change of name is a special proceeding to establish the status of a

person involving his relation with others, that is, his legal position in,
or with regard to, the rest of the community.
It is a proceeding in rem and, as such, strict compliance with all
jurisdictional requirements, particularly on publication, is essential in
order to vest the court with jurisdiction thereover.
The only name that may be changed is the true or official name
recorded in the civil register.
(Republic v. Court of Appeals, G.R. No. 97906, [May 21, 1992], 284-A PHIL 643-663)
● What name can be changed pursuant to Rule 103?
○ In principal, it covers the change of surname and middle name.
○ On the other hand, RA 9048 governs the change of first name and/or
nickname. The local civil registrar or the consul general can effect this
change.
● Can the change of name be effected administratively?
○ GR: No entry in a civil register shall be changed or corrected, without
a judicial order (Art 412, NCC).
○ XPN: Change of first name or nickname as covered by RA 9048 may
be done administratively.
 As an action in rem

A petition for correction is an action in rem, an action against a thing

and not against a person. The decision on the petition binds not only
the parties thereto but the whole world.
An in rem proceeding is validated essentially through publication.
Publication is notice to the whole world that the proceeding has for its
object to bar indefinitely all who might be minded to make an
objection of any sort against the right sought to be established. It is
the publication of such notice that brings in the whole world as a party
in the case and vests the court with jurisdiction to hear and decide it.
 Publication of the order; Requisites

1. the petition and the copy of the order indicating the date and place
for the hearing must be published;
2. the publication must be at least once a week for three successive
weeks; and,
3. the publication must be in some newspaper of general circulation
published in the province, as the court shall deem best.
Another validating ingredient relates to the caveat against the petition
being heard within 30 days prior to an election or within 4 months
after the last publication of the notice of the hearing.

Section 3, Rule 103 of the Rules

 Is it a matter of right?
Wang v. Cebu City Civil Registrar, GR 159966, 30 March 2005
The parents of JULIAN LIN CARULASAN WANG plan to stay in Singapore.

Since in Singapore middle names or the maiden surname of the mother are not
carried in a person’s name, they anticipate that PETITIONER will be discriminated
against because of his current registered name which carries a middle name.
PETITIONER and his sister might also be asking whether they are brother and sister
since they have different surnames. Carulasan sounds funny in Singapore’s
Mandarin language since they do not have the letter “R” but if there is, they
pronounce it as “L.”

Petitioner prays for the removal of his mother’s maiden name in his official
name.
Held
1. State has an interest in the names borne by individuals and entities
for purposes of identification, and that a change of name is a
privilege and not a right, so that before a person can be authorized
to change his name, he must show proper or reasonable cause, or
any compelling reason which may justify such change.
Otherwise, the request should be denied.

2. Middle names serve to identify the

maternal lineage or filiation of a
person as well as further distinguish
him from others who may have the
same given name and surname as
he has.
Stated otherwise, a change of name is a privilege. It is
not a matter of right but of judicial discretion, to be
exercised in the light of the reasons adduced and the
consequences that will follow.

Doctrine of Wang case

 Can an alien file a petition for
change of name?
YES. Provided, that the alien is domiciled in the Philippines.

● Does not require that the citizenship of the petitioner be

stated in his petition.

● Petition is verified and signed by the petitioner and sets

forth:
a. that the petitioner has been a bona fide resident of the
province where it is filed, for at least three (3) years
prior to the date of filing
b. the cause for which the change of name is sought; and
c. the name asked for
(Ong Huan Tin v. Republic, 1967)
 Change of name by alien; XPNS

Alien who is temporary resident of the Philippines

cannot avail R103.

Change of name in not temporary in nature; the new name may

not be shunted aside at will.
(Ong Huan Tin v. Republic, 1967)
 Grounds for change of name
1. when the name is ridiculous, dishonorable or extremely
difficult to write or pronounce;
2. when the change results as a legal consequence of
legitimation or adoption;
3. when the change will avoid confusion;
4. when one has continuously used and been known since
childhood by a Filipino name and was unaware of alien
parentage;
 5. when the change is based on a sincere desire to adopt a Filipino
name to erase signs of former alienage, all in good faith and
without prejudice to anybody; and
6. when the surname causes embarrassment and there is no
showing that the desired change of name was for a fraudulent
purpose or that the change of name would prejudice public
interest

(Republic v. Hernandez, 323 Phil. 606--642 (1996))

Are the grounds stated exclusive?

NO. It is left to the sound discretion of the court.

In granting or denying petitions for change of name, the question of
"proper and reasonable cause" is left to the sound discretion of the court.
The evidence presented need only be satisfactory to the Court and not all
the best evidence available.

(Oshita v. Republic (1967))

 When a change of name will avoid
confusion
Chua v. Republic, GR 231998, 20 November 2017

Petitioner’s father allegedly secured a favorable judgment allowing the change of surname
from "Kiat" to "Chua." Thus, Eric adopted the new surname of his father, "Chua," and had
been using the name "Eric Sibayan Chua" in all of his credentials. He is known in their
community as "Eric Chua" instead of "Eric Kiat."

His Certificate of Live Birth is the only document where his surname appears as "Kiat." All
other relevant documents states his name to be "Eric Sibayan Chua."

Petitioner prayed to change his surname from "Kiat" to "Chua."

Held
Petitioner is known in his community as "Eric Chua," rather than "Eric
Kiat." All of his credentials, other than his Certificate of Live Birth, bear
the name "Eric Chua."
To compel him to use the name "Eric Kiat" at this point would
inevitably lead to confusion. It would result in an alteration of all of
his official documents, save for his Certificate of Live Birth. His
children, too, will correspondingly be compelled to have their records
changed. For even their own Certificates of Live Birth state that their
father's surname is "Chua."
To deny this petition would then have ramifications not only to
Eric's identity in his community, but also to that of his children.
 CONSEQUENCE OF GRANT; OBJECTION

CONSEQUENCE. Essentially, a change of name does not define or effect a

change of one's existing family relations or in the rights and duties flowing
therefrom. It does not alter one's legal capacity or civil status.

OBJECTION. There could be instances where the change applied for may be
open to objection by parties who already bear the surname desired by the
applicant, not because he would thereby acquire certain family ties with them
but because the existence of such ties might be erroneously impressed on the
public mind.
(Republic v. Mercadera, G.R. No. 186027, [December 8, 2010], 652 PHIL 195-214)
 Change of name; Petition for adoption

○ Petition for adoption may include a prayer for

the change of name stating the cause or
reason for such change (Sec. 7(6), Rule on
Adoption).

○ It shall state:
○ The registered name of the child;
○ Aliases or other names by which the child has
been known; and
○ The full name by which the child is to be known.
After a decree is made, the adopter shall
1. state the name by which the child is
to be known and registered
2. Submit certified true copy of the
decree of adoption and the
certificate of finality to the Civil
Registrar where the child was
originally registered within thirty (30)
days from receipt of the certificate of
finality.
In case of change of name, the decree
shall be submitted to the Civil Registrar
where the court issuing the same is
situated.
 RULE 108
CANCELLATION OR CORRECTION OF
ENTRIES IN THE CIVIL REGISTRY
 Art. 412 of the New Civil Code

No entry in a civil register shall be changed or

corrected, without a judicial order.

Statutory basis
● RTC (Sec. 44e, Judiciary Act of 1948)
● Venue: In the place where the corresponding civil
registry is located (Sec. 1, R 108 ROC)

Jurisdiction and Venue

 Who has jurisdiction for change/correction of
first name and date of birth??

It is the civil registrar (of the city or

municipality) or the consul general
who has primary jurisdiction to
entertain petitions for change or
correction of first name and birth date
(RA 9048).
 Entries subject to cancellation or correction
under R108
Section 2. Upon good and valid grounds, the following entries in the civil register may be
cancelled or corrected:

a. Births: h. Adoptions;
b. marriage; i. acknowledgments of natural children;
c. deaths; j. Naturalization;
d. legal separations; k. election, loss or recovery of
citizenship;
e. judgments of annulments of marriage;
l. civil interdiction;
f. judgments declaring marriages void
from the beginning; m. judicial determination of filiation;
g. Legitimations; n. voluntary emancipation of a minor;
o. changes of name.
 Any person interested in any act, event, order or
decree concerning the civil status of persons which
has been recorded in the civil register, may file a
verified petition for the cancellation or correction
of any entry relating thereto.
(Sec. 1, Rule 108 ROC)

Who may file?

 Parties that must be impleaded

1. The civil registrar; and

2. All persons who have or claim any interest which
would be affected (Sec. 3, R 108 ROC)

Note:
The same persons can file an opposition
within 15 days from notice of the petition, or
from the last date of publication (Sec. 5, Rule 108 ROC).
 Notice and publication

Mandates two sets of notices to

different "potential oppositors."
● Given to the "persons named in
the petition" and
● Given to other persons who are
not named in the petition but
nonetheless may be considered
interested or affected parties,
such as creditors.
 When indispensable parties are not
impleaded
● Will render the proceeding and judgment void
● But, non-impleading as party-respondent of one who is
inadvertently left out or is not established to be known by the
petitioner to be affected by the grant of the petition or actually
participates in the proceeding is notified through publication.
(Republic v. Coseteng-Magpayo, GR 189476, 2 Feb 2011)
 Failure to implead

Almojuela v. Republic, GR 211724 (Resolution), 24 August 2016

For almost sixty (60) years, petitioner has been using the surname "Almojuela."
However, when he requested for a copy of his birth certificate from NSO, he was
surprised to discover that he was registered as "Felipe Condeno," instead of "Felipe
Almojuela."

In a Decision, CA held that petitioner’s failure to implead and notify the Local Civil
Registrar and his half-siblings as mandated by the rules precluded the RTC from
acquiring jurisdiction over the case, thereby, reversing the RTC’s Decision

Was the CA correct in nullifying the correction of entry on petitioner's birth

certificate on the ground of lack of jurisdiction?
Held
● Sections 4 and 5, RUle 108 mandates two (2) sets of notices to
potential oppositors: one given to persons named in the
petition, and another given to other persons who are not named
in the petition but nonetheless may be considered interested or
affected parties.
Consequently, the petition for a substantial correction of an entry in
the civil registry should implead as respondents the civil registrar, as
well as all other persons who have or claim to have any interest that
would be affected thereby.
● Republic v. Coseteng-Magpayo:
Under Rule 108, it is mandatory that the civil registrar, as well
as all other persons who have or claim to have any interest
that would be affected thereby be made respondents for the
reason that they are indispensable parties.

There are instances when the Court allows subsequent publication to

cure the defect. (to be discussed in next slide)
Read together with
● Rep. v. Lugsanay Uy; or
● Tan v. Office of the Local Civil Registrar, GR 211435
 When subsequent publication cures failure
to implead interested party
Instances where the Court has allowed the subsequent publication of a notice
of hearing to cure the petition's lack/failure to implead and notify the affected
or interested parties:

a. earnest efforts were made by petitioners in bringing to court all

possible interested parties;
b. the parties themselves initiated the corrections proceedings;
c. there is no actual or presumptive awareness of the existence of the
interested parties; or
d. when a party is inadvertently left out
(Almojuela v. Republic, G.R. No. 211724 (Resolution), [August 24, 2016])
 Subsequent publication cures defect

Rep. v. Kho, GR 170340, 29 June 2007

Respondents (siblings) filed a petition for correction of the entries in their respective
birth certificates.

RESPONDENTS’ PRAYER: the word "married" opposite the phrase "Date of marriage
of parents" be deleted because their parents were not legally married.

Carlito Kho also sought the correction of the entries in the birth certificates of his
children, specifically, the correction of the date of marriage between him and his
wife from "April 27, 1989" to "January 21, 2000," the latter date being the date
appearing in their marriage certificate; and the correction of the name of his wife's
first name from "Maribel" to "Marivel."

Failed to implead Carlito’s wife and parents

Held (Note: there are other issues in this case)

When all the procedural requirements under Rule 108 are complied
with, the appropriate adversary proceeding is satisfied.
AS TO CARLITO’S CHILDREN. It is highly improbable that Marivel was
unaware of the proceedings to correct the entries in her children's birth
certificates considering that the notices, orders, and decision of the trial
court were all sent to their SHARED residence.
AS TO PARENTS. Their father died in 1959. BUT, their mother was
presented as a witness and testified as to the material allegations of the
petition for correction of entries.

It is the affected persons' inferred notice and actual awareness of the

proceedings for the correction of entries.
 Nature of proceedings

1. SUMMARY IN NATURE
- When the correction sought to be
made is mere clerical
XPN: RA 9048
2. ADVERSARY IN NATURE
- When rectification affects civil status,
citizenship, or nationality of a party.
This is deemed to be a substantial
change.
 Clerical Error

● One which is visible to the eyes or

obvious to the understanding;
● Error made by a clerk or a transcriber;
● Mistake in copying or writing
● Some harmless and innocuous changes
such as correction of a name that is
clearly misspelled or of a misstatement
of the occupation of the parties
 Substantial error

● Allowed only in adversarial proceedings

● Those which may affect the citizenship, legitimacy
of paternity or filiation, or legitimacy of marriage.

(Tan v. Office of Civil Registrar, GR 211435)

 When is it a substantial change?
Tan v. Office of Civil Registrar, GR 211435, 10 April 2019
Ramon Tan initially failed to implead LCR Manila and NSO. He filed an amended Petition for
Correction of Entry and alleged that:
● he was born on November 13, 1965 at St. Paul Hospital in the City of Manila;
● that his birth was duly registered in the civil registry of Manila;
● that he had been using his real name "Ramon Corpuz Tan" during his lifetime;
● that when he later secured a copy of his Certificate of Live Birth, he discovered that his name was
entered as "RAMON CORPUS TAN KO" instead of his true and correct name which is "RAMON
CORPUZ TAN";
● that the aforesaid material errors and mistakes in the entries of his Certificate of Live Birth were due to
inadvertence and error of the hospital personnel who prepared the subject certificate;
● that "Ko," which was the first name of his father, was inadvertently included in his last name;
● that the mistake was not immediately rectified because he only discovered the same, after having his own
children.
Held
● The correction sought by petitioner involves a substantial change, not a
mere clerical error.
Correction of PETITIONER’S NAME would also affect the names of his parents as
entered in his Certificate of Live Birth.
Altering petitioner's surname from "Tan Ko" to "Tan" would, in effect, be an
adjudication that the first name of his father is indeed "Ko" and his surname "Tan."
Clearly, the correction would affect the identity of petitioner's father. Moreover,
there would be a need to correct his mother's name from "Trinidad Corpus Tan Ko"
to "Trinidad Corpuz Tan." This would require deleting the word "Ko" from "Tan Ko"
and changing the letter "s" to "z" in "Corpus."
Following Benemerito, to effect the correction, it would be essential to establish that
"Trinidad Corpus Tan Ko" and "Trinidad Corpuz Tan" refer to the same person.
A summary proceeding would certainly be insufficient to effect such
substantial corrections.
● Petitioner failed to comply with the procedural requirements
of an adversarial proceeding under Rule 108.
It could not be said that petitioner was unaware of the existence of
other persons who may be affected by the corrections sought. It is his
own mother who would be affected by the proceeding for correction of
entry which he filed.
Thus, there was no showing or, at the very least, reason to believe that
her mother was even aware of the subject proceeding for correction of
entry.
 While there may be cases where the Court held that the failure to
implead and notify the affected or interested parties may be cured by
the publication of the notice of hearing, earnest efforts were made by
petitioners in bringing to court all possible interested parties.
Such failure was likewise excused where the interested parties
themselves initiated the corrections proceedings; when there is no
actual or presumptive awareness of the existence of the interested
parties; or when a party is inadvertently left out.

Rep. v. Lugsanay Uy as mentioned in Tan case

 By reason of “sex change”
Silverio v. Republic, GR 174689, 22 October 2007
Can a person who undergoes a sex reassignment change his/her sex in official
government documents (e.g. birth certificate)? No.

Currently, there are no laws allowing a transgender or an individual who had

undergone sex reassignment surgery to identify him/herself as part of the opposite
sex.

In our system of government, it is for the legislature, should it choose to do so, to

determine what guidelines should govern the recognition of the effects of sex
reassignment.

If the legislature intends to confer on a person who has undergone sex reassignment the
privilege to change his name and sex to conform with his reassigned sex, it has to enact
legislation laying down the guidelines in turn governing the conferment of that privilege.
SILVERIO was born as a male. He alleges that he is a male transsexual, that
is, "anatomically male but feels, thinks and acts as a female" and that he
had always identified himself with girls since childhood. As such, he
underwent sex reassignment surgery.
Rommel Jacinto Dantes Silverio filed a petition for the change of his first
name and sex in his birth certificate.
● from "Rommel Jacinto" to MELY
● from "Male" to FEMALE

Should the Court grant his prayer?

AS TO THE CHANGE OF NAME.
The State has an interest in the names borne by individuals and entities for purposes
of identification. A change of name is a privilege, not a right. Petitions for change
of name are controlled by statutes.

RA 9048 does not sanction a change of first name on the ground of sex
reassignment. Rather than avoiding confusion, changing petitioner’s first name for
his declared purpose may only create grave complications in the civil registry and the
public interest.

Change of first name was also not within the court’s primary jurisdiction. The proper
remedy was administrative (RA 9048).

It was also filed in the wrong venue as the proper venue was in the Office of the Civil
Registrar of Manila where his birth certificate is kept.

More importantly, it had no merit since the use of his true and official name does
not prejudice him at all.
AS TO THE CHANGE OF ENTRY AS TO SEX.
Under RA 9048, a correction in the civil registry involving the change of sex is not a
mere clerical or typographical error. It is a substantial change for which the
applicable procedure is Rule 108 of the Rules of Court.

Under the Civil Register Law, a birth certificate is a historical record of the facts as
they existed at the time of birth. Thus, the sex of a person is determined at birth.

Considering that there is no law legally recognizing sex reassignment, the

determination of a person’s sex made at the time of his or her birth, if not attended
by error, is immutable.

While petitioner may have succeeded in altering his body and appearance through
the intervention of modern surgery, no law authorizes the change of entry as to sex
in the civil registry for that reason.
What about on grounds of equity?
The changes sought by petitioner will have serious and wide-ranging legal and public
policy consequences.

1. Will affect family relations

i.e. marriage which is a union between a man and woman

2. Will alter laws which apply particularly to women

The remedies petitioner seeks involve questions of public policy to be addressed

solely by the legislature, not by the courts.
 Congenital Adrenal Hyperplasia (CAH)
Rep. of Philippines v. Cagandahan

Can the intersex person choose which sex he/she belongs?

Jennifer Cagandahan filed a Petition for Correction of Entries in Birth Certificate.
She has a condition called CAH.

At 13yo, tests revealed that her ovarian structures

had minimized, she has stopped growing and she has
no breast or menstrual development. She alleged
that for all interests and appearances as well as in
mind and emotion, she has become a male person.
**CAH is a condition where persons afflicted possess
both male and female characteristics.
PRAYER: That her birth certificate be corrected such that her gender be changed
from female to male and her first name be changed from Jennifer to Jeff.

Granted. Where the person is biologically or naturally intersex, the

determining factor in his gender classification would be what the individual,
having reached the age of majority, with good reason thinks of his/her sex.

Cagandahan here thinks of himself as a male and considering that his body
produces high levels of male hormones (androgen) there is preponderant biological
support for considering him as being male. Sexual development in cases of intersex
persons makes the gender classification at birth inconclusive. It is at maturity that
the gender of such persons is fixed.
 Petition for recognition of a foreign
judgement

● Can be made under Rule 108

Since the recognition of a foreign judgment only requires proof of fact

of the judgment, it may be made in a special proceeding for
cancellation or correction of entries in the civil registry under Rule 108
of the Rules of Court.
(Fujiki v. Marinay)
 Recognition of foreign judgement made under R108

Fujiki v. Marinay, GR 196049, 26 June 2013

Fujiki is a Japanese national who married Marinay in the Philippines.

After Marinay failed to move to Japan, the two lost contact with each
other.

Without the first marriage being dissolved, Marinay got married again
to another person. Due to abuse, Marinay left her 2nd husband and
re-established her relationship with Fujiki.

They obtained a judgment from a family court in Japan declaring her

second marriage void on the ground of bigamy.

In the Philippines, Fujiki filed a petition for a Judicial Recognition of

Foreign Judgment before the RTC. He argued that Rule 108 is
applicable.
Can a petition for recognition of a foreign judgement (divorce) be
made under R108?
A foreign judgment relating to the status of a marriage affects the civil
status, condition and legal capacity of its parties.
A recognition of a foreign judgment is not an action to nullify a marriage. It
is an action for Philippine courts to recognize the effectivity of a foreign
judgment, which presupposes a case which was already tried and decided
under foreign law.

Fujiki had material interest and therefore, the

personality to nullify a bigamous marriage.
 Rule 103 Rule 108
Cancellation or Correction of Entries
Change of name in the Civil Registry

● Substantial change ● Substantial correction

● RTC, where petitioner resides; ● RTC, where corresponding civil registry is
located
● Grounds: ● Upon good and valid grounds
○ Ridiculous, tainted with dishonor,
extremely difficult to write/pronounce
○ Consequence of change of status
○ To avoid confusion
○ Continuous use and been known since
childhood by a Filipino name, unaware of
alien parentage
○ Sincere desire to adopt Filipino name to
erase signs of former alienage ● Verified petition for cancellation or correction
● Signed and verified petition of any entry
● GOV’T: Solicitor General or local fiscal ● GOV’T: Civil Registrar
 Rule 103 Rule 108
Cancellation or Correction of Entries
Change of name in the Civil Registry

● Contents of petition ● Contents of petition

○ A bona fide resident of province where ○ A bona fide resident of province where
petition was filed for at least 3 years prior petition was filed for at least 3 years prior
to the date of filing to the date of filing

○ Cause for which the change of name is ○ Cause for which the change of name is
sought sought

○ Name asked for ○ Name asked for

● Judicial proceeding ● Summary or Adversarial

● At least 1x a week for 3 consecutive weeks in a ● At least 1x a week for 3 consecutive weeks in a
newspaper of general circulation (NOTICE OF newspaper of general circulation (NOTICE OF
HEARING) HEARING)
May a petition for change of name (R103) and correction of entry
in the civil registry (R108) be joined in one proceeding?

YES, if the change of name and the correction of entry are

based on the same underlying facts or logically connected to
each other and provided that all requirements of both
provisions are complied with.

(Republic v. Belmonte, GR L-32600, 26 Feb 1988)

 RA. 9048
am. by RA 10172
CLERICAL ERROR ACT
● Local civil registry office
● Philippine consul
● Venue: In the place where the corresponding civil
registry is located (Sec. 1, R 108 ROC)

Jurisdiction and Venue

 Any person having direct and personal interest in
the correction of a clerical or typographical error in
an entry and/or change of first name or nickname
in the civil register may file a verified petition, in
person.
(Sec. 3, RA 9048)

Who may file?

What if person is in another
place?
The petition may be filed, in person, with the local civil registrar
of the place where the interested party is presently residing or
domiciled. The 2 local civil registrars will then communicate to
facilitate the processing of the petition.
Citizens of the Philippines who are presently residing or domiciled in
foreign countries may file their petition, in person, with the nearest
Philippine Consulates.
 All petitions for the clerical or typographical errors and/or
change of first names or nicknames may be availed of only
once.
Where the petition is denied by the city or municipal civil
registrar or the consul general, the petitioner may either
appeal the decision to the civil registrar general or file
the appropriate petition with the proper court.

In case of appeal
 Legal effects

● Amended Articles 376 and 412 of the Civil Code, removing clerical
errors and changes of the name outside the ambit of Rule 108 and
putting them under the jurisdiction of the civil registrar.
● Now governs the change of first name.
● It vests the power and authority to entertain petitions for change
of first name to the city or municipal civil registrar or consul
general concerned.
In sum, the remedy and the proceedings regulating change of first
name are primarily administrative in nature, not judicial.
Entries governed by RA 9048, as amended
by RA 10172
1. Clerical or typographical errors of first name
2. Change of first name or nickname
3. Day and month in the date of birth
4. Sex of a person where it is patently clear that there was a clerical
or typographical error or mistake in the entry
FIRST NAME
A name or nickname given to a person
which may consist of one or more
name sin addition to the middle and
last names.
(Sec 2(6), RA 9048)

Change of full name is governed by

Rule 103, ROC.
 Grounds for change of first name or
nickname

Any of the following:

● Ridiculous, tainted with dishonor or extremely difficult to write or
pronounce
● New name has been habitually and continuously used by
petitioner, and is publicly known as such
● To avoid confusion
(Sec. 4, RA 9048)
 Civil Registrar General

1. Within 10 working days from receipt of the

decision, CRG shall exercise the power to impugn
such decision by way of an objection based on
the following grounds:
● The error is not clerical or typographical;
● The correction is substantial or controversial
as it affects the civil status of a person; or
● The basis used in changing the first name or
nickname of a person does not fall under
Section 4.
2. Shall immediately notify the city or municipal civil registrar or the
consul general of the action taken on the decision.
Upon receipt of the notice thereof, the city or municipal civil
registrar or the consul general shall notify the petitioner of such
action.
3. Failure to exercise power to impugn – decision shall become
final and executory.
 RULE 104
VOLUNTARY DISSOLUTION OF
CORPORATIONS
 RULE 105
JUDICIAL APPROVAL OF VOLUNTARY
RECOGNITION OF MINOR NATURAL CHILDREN
VOLUNTARY RECOGNITION

An admission of the fact of paternity or maternity by

the presumed parent expressed in the form prescribed by the
Civil Code. Its essence lies in the avowal of the parent that the
child is his; the formality is added to make the admission
incontestable, in view of the consequences. (Gapusan Chua v.
CA)
With the effectivity of the Family Code, the
following are the changes introduced to Judicial
Approval of Voluntary Recognition of minors
Art. 172 of the Family Code provides that filiation of
legitimate children is established by any of the following:

1. The record of birth appearing in the civil register or a final

judgment; or
2. An admission of legitimate filiation in a public document or
a private handwritten instrument and signed by the parent
concerned.
With the effectivity of the Family Code, the
following are the changes introduced to Judicial
Approval of Voluntary Recognition of minors
In the absence of the foregoing evidence, the legitimate
filiation shall be proved by:

1. The open and continuous possession of the status of a

legitimate child; or
2. Any other means allowed by the Rules of Court and special
laws.
Note: Filiation of illegitimate children may also be established in
accordance with the foregoing rules.
With the effectivity of the Family Code, the
following are the changes introduced to Judicial
Approval of Voluntary Recognition of minors

The due recognition of an illegitimate child in a record of

birth, or in a will, or in a statement before the court of record,
or in any authentic writing is, in itself a consummated act of
acknowledgement of a child, and no further court action is
required. (Gono-Javier v. CA, 239 SCRA 593)
 Can an Illegitimate child use the surname of the
father?

General rule: Illegitimate children shall use the surname of the

mother.

Exception: As a consequence of the Judicial Recognition of the

paternity by the father, the illegitimate children may use the
surname of the father. The illegitimate children have the option
whether to continue to use the surname of the mother or change
it to the surname of the father. (Grande v. Antonio, GR. No. 206248,
February 18, 2014)
 May a father petition the court to have his
illegitimate children use his surname?

NO. Art. 176 of the Family Code gives illegitimate children the
right to decide if they want to use the surname of their father or
not. It is not the father or the mother who is granted by law the
right to dictate the surname of their illegitimate children. (Grande
v. Antonio, GR. No. 206248, February 18, 2014)
 When is judicial approval needed for the efficacy
of voluntary recognition?
Art. 281 of the Civil Code provides:
A child who is of age cannot be recognized without his
consent.
When the recognition of a minor does not take place in a record of
birth or in a will, judicial approval shall be necessary.
A minor can in any case impugn the recognition within four years
following the attainment of his majority.
 When is judicial approval needed for the efficacy
of voluntary recognition?
In other words, judicial approval is not needed if a recognition is
voluntarily made:

1. Of a child who is of age, only his consent being necessary, or

2. Of a minor whose acknowledgement is effected in a record of
birth or in a will.
It is needed:

1. If the recognition of the minor is effected, not through record

of birth or in a will but through a statement in a court of
record or an authentic document. (Gapusan-Chua v. CA)
 Where to file?

Where judicial approval of a voluntary recognition of a

minor natural child is required, such child or his parents shall
obtain the same by filing a petition to that effect with the Court of
First Instance of the province in which the child resides. In the
City of Manila, the petition shall be filed in the Juvenile and
Domestic Relations Court. (ROC, Rule 105, Sec. 1)
 Contents of petition

1. Jurisdictional facts;
2. The names and residences of the parents who
acknowledged the child, or of either of them, and their
compulsory heirs, and the person or persons with whom the
child lives;
3. The fact that the recognition made by the parent or
parents took place in a statement before a court of record
or in an authentic writing, copy of the statement or writing
being attached to the petition. (ROC, Rule 105, Sec. 2)
 Order for hearing
Upon the filing of the petition, the court, by an order reciting
the purpose of the same,
● Shall fix the date and place for the hearing thereof, which
date shall not be more than six (6) months after the entry of
the order
● Shall cause a copy of the order to be served personally or
by mail upon the interested parties, and published once a
week for three (3) consecutive weeks, in a newspaper or
newspaper of general circulation in the province. (ROC, Rule
105, Sec. 3)
 Opposition
Any interested party must, within fifteen (15) days from the
service, or from the last date of publication, of the order
referred to in the next preceding section, file his opposition to the
petition, stating the grounds or reasons therefor. (ROC, Rule 105,
Sec. 4)
 Judgment
If, from the evidence presented during the hearing, the court
is satisfied that the recognition of the minor natural child was
willingly and voluntarily made by the parent or parents
concerned, and that the recognition is for the best interest of
the child, it shall render judgment granting judicial approval of
such recognition. (ROC, Rule 105, Sec. 5)
 Service of Judgment upon civil registrar
A copy of the judgment rendered in accordance with the
preceding section shall be served upon the civil registrar whose
duty it shall be to enter the same in the register. (ROC, Rule 105,
Sec. 6)
 Ligayan Gapusan - Chua v. CA. G.R. No. L-46746,
March 16, 1990

Facts:

● Felisa Gapusan Parcon died intestate and without legitimate

issue in Bacolod City. Neither her surviving spouse, nor her
known relatives, three sisters and a nephew made any move
to settle her estate judicially.
● It was Ligaya Gapusan-Chua, claiming to be her acknowledged
natural daughter who instituted the judicial proceedings for
the settlement of Felisa’s estate.
Facts:

● About a year and eight months after Felisa’s demise, Ligaya

filed a petition for the settlement of the estate and for
issuance of letters of administration in her favor.
● She also sought her designation as special administratrix
pending her appointment as regular administratrix.
● The court appointed Ligaya as special administratrix of Felisa’s
estate. Felisa’s surviving husband, filed a motion for
reconsideration. He denied that Ligaya was an acknowledged
natural child of his deceased wife, and applied for his own
appointment as administrator of his wife’s estate.
Facts:

● Hearings were had on the issue of Ligaya’s claim of affiliation

and the latter submitted several documents to prove the
same.
○ Felisa's sworn statement of assets and liabilities wherein Ligaya is named and
described as the daughter of Felisa;
○ Felisa's application for GSIS life insurance in which Ligaya is set out as her
(Felisa's) daughter;
○ Check No. 44046 of the Government Service Insurance System in the sum of
P505.50 paid to her (Ligaya) as her share in the death benefits due the heirs of
Felisa Parcon; and
○ a family photograph, showing Ligaya beside the deceased.
Facts:

● The husband, on the other hand, sought to demonstrate that

Ligaya’s exhibits did not constitute conclusive proof of her
claimed status of acknowledged natural child.
○ another document, Felisa's application for membership in Negros Occidental
Teachers' Federation (NOTF), merely named Ligaya as her "adopted daughter;"
○ in the distribution of death benefits pursuant to the decedent's GSIS insurance
policy, supra, Ligaya was allocated only P500.00 whereas Prospero received
P1,000.00; and
○ Mrs. Leticia Papasin (Felisa's sister) and Vice-Mayor Solomon Mendoza travelled
from afar to affirm before the Probate Court on the witness stand that Ligaya was
not the daughter of Felisa, Mrs. Papasin's testimony being that in 1942 an
unknown "drifter" had sold Ligaya, then an infant, to Felisa.
Facts:

● The probate court found for Ligaya.

● The husband disagrees. He argues that, as ruled by the Court
of Appeals, the statements designating Ligaya as Felisa's
daughter merely furnished ground for Ligaya to compel
recognition by action which, however, should have been
brought during the lifetime of the putative parent in
accordance with Article 285 of the Civil Code.
● Since, no such action was instituted prior to the death of
Felisa, proof of the "authentic document" (sworn statement of
assets and liabilities) in the proceedings for the settlement of
the latter's estate was inefficacious as basis for a
declaration of filiation or heirship.
Issue:

Whether Felisa’s sworn statement of assets and liabilities and

her application for insurance are “authentic writings” which
effectively operated as a recognition of Ligaya as her natural child,
even if no action was brought by the latter to compel the former,
during her lifetime, to recognize her as such.
Ruling: YES.

Recognition of natural children may be voluntary or

compulsory.
Voluntary recognition, it has been said, "is an admission of the fact
of paternity or maternity by the presumed parent, expressed in
the form prescribed by the Civil Code. Its essence lies in the
avowal of the parent that the child is his; the formality is added to
make the admission incontestable, in view of its consequences."
Ruling:
The form is prescribed by Article 278 of the Civil Code, earlier
adverted to; it provides that a voluntary recognition "shall be made
in the record of birth, a will, a statement before a court of record, or
in any authentic writing."
Compulsory recognition is sometimes also called judicial
recognition, to distinguish it from that which is a purely voluntary
act of the parent. It is recognition decreed by final judgment of a
competent court. It is governed by Articles 283 and 284, setting forth
the cases in which the father or mother, respectively, is obliged to
recognize a natural child, and Article 285 providing that generally,
the action for recognition of natural children may be brought
only during the lifetime of the presumed parents.
Ruling:
The matter of whether or not judicial approval is needful for the
efficacy of voluntary recognition is dealt with in Article 281 of the
Civil Code.
Art. 281. A child who is of age cannot be recognized without his consent.

When the recognition of a minor does not take place in a record of birth or in a will, judicial
approval shall be necessary.

A minor can in any case impugn the recognition within four years following the attainment
of his majority.

In other words, judicial approval is not needed if a recognition is voluntarily made —

1) of a person who is of age, only his consent being necessary; or

2) of a minor whose acknowledgment is effected in a record of birth or in a will.

Ruling:
On the other hand, judicial approval is needful if the recognition of
the minor is effected, not through a record of birth or in a will
but through a statement in a court of record or an authentic
document. In any case the individual recognized can impugn the
recognition within four years following the attainment of his
majority.
In the case at bar, the evidence submitted is undoubtedly an
"authentic writing" within the contemplation of Article 278.
Art. 278. Recognition shall be made in the record of birth, a will, a
statement before a court of record, or in any authentic writing.
Ruling:
"An 'authentic writing' for purposes of voluntary recognition . .
. (is) understood as a genuine or indubitable writing of the father"
(or mother), including "a public instrument" (one acknowledged
before a notary public or other competent official with the
formalities required by law), and, of course, a public or official
document in accordance with Section 20, Rule 132 of the Rules of
Court.
● The sworn statement of assets and liabilities filed by Felisa
Parcon is a public document, having been executed and
submitted pursuant to a requirement of the law. So it has been
held by this Court.
Ruling:
● The other two writings above mentioned are, to be sure, not
public documents, but this is of no moment; neither of them has
to be a public document in order to be categorized as an
"authentic writing." It is enough that they are the genuine or
indubitable writings of Felisa Gapusan Parcon.
● Moreover, if these three (3) writings are considered in
conjunction with the undisputed fact that Ligaya had been
continuously treated by Felisa as her daughter, the proposition
that Ligaya was indeed Felisa's daughter becomes conclusive.
Ruling:
It is admitted on all sides that no judicial action or proceeding was
ever brought during the lifetime of Felisa to compel her to recognize
Ligaya as her daughter.
It is also evident that Ligaya's recognition as Felisa's daughter was
not made in a record of birth or a will, a circumstance which would
have made judicial approval unnecessary, only her own consent to
the recognition being required.
The acknowledgment was made in authentic writings, and hence,
conformably with the legal provisions above cited, judicial approval
thereof was needed if the writings had been executed during
Ligaya's minority.
Ruling:
In other words, the question of whether or not the absence of
judicial approval negated the effect of the writings as a mode of
recognition of Ligaya is dependent upon the latter's age at the
time the writings were made.

The consent required by Article 281 of a person of age who has

been voluntarily recognized may be given expressly or tacitly.
Assuming then that Ligaya was of age at the time of her voluntary
recognition, the evidence shows that she has in fact consented
thereto.
Ruling:

Her consent to her recognition is not only implicit from her failure to
impugn it at any time before her mother's death, but is made
clearly manifest and conclusive by her assertion of that
recognition in the judicial proceeding for the settlement of her
mother's estate as basis for her rights thereto.
Assuming on the other hand, that she was a minor at the time of her
recognition, and therefore judicial approval of the recognition was
necessary, the absence thereof was cured by her ratification of
that recognition, after having reached the age of majority, by
her initiation of the proceedings for the settlement of her
deceased mother's estate on the claim precisely that she was
the decedent's acknowledged natural daughter.
Ruling:

The requirement of judicial approval imposed by Article 281 is

clearly intended for the benefit of the minor.
The lack of judicial approval can not impede the effectivity of the
acknowledgment made. The judicial approval is for the
protection of the minor against any acknowledgment made to
his prejudice.

Therefore, the lack, or insufficiency of such approval is NOT a defect

available to the recognizing parent but one which the minor may
raise or waive.
RULE 107
ABSENTEES
WHO IS AN ABSENTEE?

An absentee is one who disappears from his domicile and

his whereabouts being unknown and without having left an
agent to administer his property or the power conferred upon
the agent has expired. (ROC, Rule 107, Sec. 1)
PROCEDURE IN THE RULE ON ABSENTEES
PETITION FOR APPOINTMENT OF REPRESENTATIVES

APPLICATION FOR DECLARATION OF ABSENCE AND

APPOINTMENT OF TRUSTEE OR ADMINISTRATOR

TERMINATION OF ADMINISTRATION/TRUSTEESHIP
PETITION FOR APPOINTMENT
OF REPRESENTATIVES
When a person disappears from his domicile, his
whereabouts being unknown, and without having left an
agent to administer his property, or the power conferred
upon the agent has expired, any interested party, relative
or friend may petition the Court of First Instance of the place
where the absentee resided before his disappearance, for
the appointment of a person to represent him provisionally in
all that may be necessary. (ROC, Rule 107, Sec. 1)
When to file?

After the lapse of two (2) years from his disappearance and
without any news about the absentee or since the receipt of the
last news, or of five (5) years in case the absentee has left a
person in charge of the administration of his property, the
declaration of his absence and appointment of a trustee or
administrative may be applied for. (ROC, Rule 107, Sec. 2)
Who may file a petition for appointment
of administrator or trustee?
(a) The spouse present;
(b) The heirs instituted in a will, who may present an authentic
copy of the same.
(c) The relatives who would succeed by the law of intestacy; and
(d) Those who have over the property of the absentee some right
subordinated to the condition of his death. (ROC, Rule 107, Sec. 2)
Who may file?

(a) The spouse present;

(b) The heirs instituted in a will, who may present an authentic
copy of the same.
(c) The relatives who would succeed by the law of intestacy; and
(d) Those who have over the property of the absentee some right
subordinated to the condition of his death. (ROC, Rule 107, Sec. 2)
Where to file?

The petition for the appointment of an absentee should be filed in the

RTC where the absentee resided before his disappearance. (ROC,
Rule 107, Sec. 1)
Purpose of Petition

The primordial purpose is to provide for an administrator of

the property of the absentee. The general interest of the society
may require that the property does not remain abandoned
without someone representing it and without an owner.
Hence, if the absentee left no properties, such petition is
unnecessary. (Reyes v. Alejandro, GR. No. L-32026, January 16, 1986)
Contents of the Petition
1. Jurisdictional facts;
2. Names, ages, and residences of the heirs
instituted in the will, copy of which shall be presented, and of
the relatives who would succeed by the law of intestacy;
3. Names and residences of the creditors and others who
may have an adverse interest over the property if the
absentee; and
4. Probable value, location and character of the property
belonging to the absentee. (ROC, Rule 107, Sec. 3)
 Who may be appointed?
Appointment of representative/trustee;
a. Spouse present shall be preferred when there is no legal
separation; or
b. If absentee left no spouse, or spouse present is a minor or
otherwise incompetent- any competent person may be
appointed by the court.
*In case of declaration of absence – trustee or administrator of
absentee’s property shall be appointed in accordance with the
preceding paragraph. (ROC, Rule 107, Sec. 7)
 Petition to declare and Petition for appointment
could be combined and adjudicated in the same
proceeding
A petition to declare the husband an absentee and the petition to
place the management of the conjugal properties in the hands of
the wife could be combined and adjudicated in the same
proceeding.
The wife who is appointed as an administratrix of the husband's
property cannot alienate or encumber the husband's property, or
that of the conjugal partnership, without judicial authority. (Art. 388,
NCC)
DECLARATION OF ABSENCE AND
APPOINTMENT OF TRUSTEE OR
ADMINISTRATOR
 Declaration of Absence

The declaration of absence takes effect six (6) months after

publication of the judgment on declaration of absence in a
newspaper of general circulation and in the Official Gazette.
The order must also be recorded in the Civil Registry of the place
where the absentee last resided. (ROC, Rule 107, Sec. 6)
 Declaration of Presumptive Death

General rule: No independent action for declaration of

presumption of death. The presumption may arise and be invoked
in an action or special proceeding. (Lukban v. Republic, G.R. No.
L-8492, February 29, 1956)
 Declaration of Presumptive Death

Exception: Under Art. 41 of Family Code, for purpose of present

spouse contracting a second marriage, he must file a summary
proceeding for declaration of presumptive death of the absentee,
without prejudice to the latter’s reappearance.
This is intended to protect present spouse from criminal
prosecution for bigamy under Art. 349 of RPC. With judicial
declaration that missing spouse is presumptively dead, good faith
of present spouse in contracting marriage is established.
 Declaration of Presumptive Death
REQUISITES:
1. The absent spouse was absent for:
4 consecutive years – spouse present had a
well-founded belief that the absent spouse was already
dead; or
2 years – in danger of death under the circumstances in
Art. 391 of the Civil Code, computed from the occurrence of
the event from which death is presumed. (Art. 41, FC)
 Declaration of Presumptive Death
NOTE: There are certain circumstances where a person was already
considered dead without waiting for the period to expire. Where
there are facts, known or knowable, from which a rational
conclusion can be made, the presumption does not step in and the
rule of preponderance of evidence controls.
(Eastern Shipping Lines v. Lucero G.R. No. L-60101 August 31, 1983)
 Declaration of Presumptive Death
REQUISITES:
2. The present spouse wishes to remarry.
3. The present spouse has a well-founded belief that the
absentee is dead; and
4. The present spouse files a summary proceeding for the
declaration of presumptive death of the absentee.
(Republic v. Granada, G.R. No. 187512, June 13, 2012)
 WELL FOUNDED BELIEF IN THE
ABSENTEE’S DEATH - WHAT IS REQUIRED?
The present spouse must prove that his/her belief was the
result of diligent and reasonable efforts to locate the absent
spouse and that based on these efforts and inquiries he/she
believes that under the circumstances, the absent spouse is
already dead.
The mere absence of the spouse for such periods under the
law, lack of any news that such absentee spouse is still alive,
failure to communicate, or general presumption of absence
under the Civil Code would not suffice. (Republic v. Tampus, GR.
2142423, March 16, 2016)
 MERE ABSENCE WITHOUT EFFORT TO
LOCATE IS INSUFFICIENT
Before a judicial declaration of presumptive death can be
obtained, it must be shown that the absent spouse had been
absent for four (4) consecutive years and the present spouse
had a well-founded belief that the absent spouse was already
dead.
Mere allegations without documents to corroborate the
allegation and the lack of any attempt to seek the aid of the
authorities regarding the spouse’s disappearance will warrant
the dismissal of the petition. (Republic v. Orcelino-Villanueva, GR.
210929, July 29, 2015)
 Republic v. Maria Fe Cantor. G.R. No. 184621,
December 10, 2013
Facts:

● Maria and Jerry were married and they lived together as

husband and wife in their conjugal dwelling. During their
married life as a couple, they had a quarrel. After the quarrel,
Jerry left their conjugal dwelling and it was the last time that
Maria ever saw him.
● Since them, she had not seen, communicated nor heard
anything from Jerry or his whereabouts.
Facts:

● More than 4 years, from the time of Jerry’s disappearance,

Maria filed before the RTC a petition for her husband’s
declaration of presumptive death.
● She claimed that she had a well-founded belief that Jerry was
already dead.
● She alleged that she had inquired from her mother-in-law, her
brothers-in-law, her sisters-in-law, as well as her neighbors and
friends, but to no avail.
● In hopes of finding Jerry, she also allegedly made it a point to
check the patients’ directory whenever she went to a hospital.
● All these earnest efforts, Maria, claimed, proved futile,
prompting her to file the petition in court.
Issue:

Whether Maria had a well-founded belief that her husband is

already dead.
Ruling:

Maria’s well-founded belief was not enough or there was lack of

earnest effort to find her husband.
The reason are as follows:
1) Maria did not actively look for her missing husband as her
hospital visits were not planner nor primarily directed to look
for him;
2) She did not report Jerry’s absence to the police nor did she seek
the aid of the authorities to look for him;
3) She did not present as witnesses Jerry’s relatives or neighbors
and friends, who can corroborate her efforts to locate Jerry; and
Ruling:

4) There was no other corroborative evidence to support Maria’s

claim that she conducted a diligent search. Neither was there
supporting evidence proving that she had a well-founded belief
other than her bare claims that she inquired from her friends and
in-laws about her husband’s whereabouts.
In sum, the Court viewed that Maria merely engaged in a
“passive search” where she relied on uncorroborated inquiries
from her in-laws, neighbors and friends. She failed to conduct a
diligent search because her alleged efforts are insufficient to form a
well-founded belief that her husband was already dead.
 May the petition for declaration of presumptive
death under Art. 41 be granted even if the
purpose is not to remarry?
Estrellita Tadeo-Matias v. Republic. G.R. No. 230751, April 25,
2018

Facts:
● Estrellita filed before the RTC of Tarlac City a petition for the
declaration of presumptive death of her husband.
● The husband has been assigned in Pampanga and was never
heard of again since 1979, and after three decades.
Facts:

● After three decades, the assailed petition was filed in order for
Estrellita to claim the benefits as a surviving spouse pursuant to
PD 1638, a law establishing a system of retirement and separation
for military personnel of the Armed Forces of the Philippines and
for other purposes.
● The respondent Republic assailed the decision of the RTC
before the CA. The CA set aside the RTC decision on the ground
that the petition to declare presumptive death was not filed for
the purpose of remarrying, but only for claiming the benefits.
 May the petition for declaration of presumptive
death under Art. 41 be granted even if the
purpose is not to remarry?
Ruling: No. The petition for the declaration of presumptive death
filed by petitioner is not an action that would have warranted the
application of Article 41 of the Family Code if petitioner was not
seeking to remarry.
A reading of the said provision shows that the presumption of
death established therein is only applicable for the purpose of
contracting a valid subsequent marriage under the said law.
 May the petition for declaration of presumptive
death under Art. 41 be granted even if the
purpose is not to remarry?
Ruling: In our jurisdiction, a petition whose sole objective is to have
a person declared presumptively dead under the Civil Code is not
regarded as a valid sit and no court has any authority to take
cognizance of the same,
 Duty of the Court
Upon filing of the petition, the court should:
1. Issue an order setting forth the date and place of the hearing;
2. Direct that notice must be sent to known interested persons at
least 10 days before the hearing; and
3. Order the publication once a week for 3 consecutive weeks in
a newspaper of general circulation in the province or city where
the absentee resides. (ROC, Rule 107, Sec. 4)
 Notice and Publication Required
Copies of the notice of the time and place fixed for the and hearing
shall be served upon known heirs, legatees, devisees, creditors and
other interested persons at least ten (10) days before the day of
the hearing.
It shall be published once a week for 3 consecutive weeks in a
newspaper of general circulation in the place where the absentee
resides. (ROC, Rule 107, Sec. 4)
 Opposition
Anyone appearing to contest the petition shall:
1. State in writing his grounds therefor; and
2. Serve a copy thereof to petitioner and other interested parties
on or before the hearing. (ROC, Rule 107, Sec. 5)
 Proof at hearing; order
1. Show compliance with Sec. 4
2. Upon satisfactory proof of allegations in the petition, the
court shall issue an order granting the same and appointing
the representative, trustee or administrator for the absentee
3. In case of declaration of absence, the same shall not take
effect until 6 months after its publication in a newspaper of
general circulation designated by the court and in the Official
Gazette. (ROC, Rule 107, Sec. 6)
TERMINATION OF
ADMINISTRATION/TRUSTEESHIP
 Grounds for termination of administration

1. Absentee appears personally or through an agent;

2. Absentee’s death is proved and heirs appear; or
3. Third person appears showing that he acquired title over the
property of the absentee. (ROC, Rule 107, Sec. 8)
 Illustrative Cases
1. SPOUSES ELBE LEBIN and ERLINDA LEBIN v. VILMA S. MIRASOL, G.R. No. 164255,
September 7, 2011.
The perfection of an appeal within the period laid down by law is mandatory and
jurisdictional, because the failure to perfect the appeal within the time prescribed by
the Rules of Court causes the judgment or final order to become final as to preclude
the appellate court from acquiring the jurisdiction to review the judgment or final
order. The failure of the petitioners and their counsel to file their record on appeal on
time rendered the orders of the RT final and unappealable. Thereby, the appellate
court lost the jurisdiction to review the challenged orders, and the petitioners were
precluded from assailing the orders.
2. ARANAS v. MERCADO, et al. G.R. No. 156407, January 15, 2014.
Multiple appeals are permitted in special proceedings as a practical recognition
of the possibility that material issues may be finally determined at various
stages of the special proceedings. Section 1, Rule 109 of the Rules of Court
enumerates the specific instances in which multiple appeals may be resorted to
in special proceedings.

3. QUASHA ANCHETA PEÑA AND NOLASCO LAW OFFICE v. LCN

CONSTRUCTION CORP. G.R. No. 174873, August 26, 2008.
In sum, although it is within the discretion of the RIC whether or not to permit
the advance distribution of the estate, its exercise of such discretion should be
qualified by the following: (1) only part of the estate that is not affected by any
pending controversy or appeal may be the subject of advance distribution
(Section 2, Rule 109); and (2) the distributes must post a bond, fixed by the
court, conditioned for the payment of outstanding obligations of the estate
(second paragraph of Section 1, Rule 90).
 PROPOSED RULE ON DECLARATION OF
ABSOLUTE NULLITY OF VOID MARRIAGES
AND ANNULMENT OF VOIDABLE MARRIAGES
AM 02-11-10 SC
Introduction
❖ AM 02-11-10 SC now primarily governs the special
procedure on absolute nullity of void marriages and
annulment of voidable marriages.

❖ Provisions of the Rules of Court apply suppletorily (Sec. 1)

❖ Took effect on March 15, 2003

Recap - Void Marriage vs Voidable Marriage
❖ Void Marriages - Marriage that is deemed to have never
occurred at all and cannot be the source of rights. (Ninal v
Badayog. GR no. 133778. March 14, 2000)

❖ Voidable Marriages - A marriage considered valid and

produces all its civil effects until it is set aside by final
judgement of a competent court in an action for
annulment. (Suntay v Cojuanco-Suntay. 300 SCRA 760, 770
(1998)
Recap - Void Marriage vs Voidable Marriage
❖ Voidable marriages are considered valid, hence the rights
and obligations arising therefrom are valid and binding,
unless declared as annulled by final judgement of a
competent court.

❖ Void marriages creates no rights, except those declared by

law concerning the properties of the alleged spouses, since
they are considered as non-existent.
Petition for declaration of absolute nullity of
void marriages - Procedure (Sec. 2)
❖ Who may file?
➢ Only the husband or wife may file (Sec. 2 (a))
❖ Where to file?
➢ In the Family Court (Sec. 2 (b))
❖ What to allege?
➢ An action under Art 36 of the Family Code shall allege the
full facts showing the psychological incapacity of either of
the spouses to comply with marital obligations at the time
of marriage even if the incapacity manifests after its
celebration. Expert opinions need not be alleged.
Petition for declaration of absolute nullity of void
marriages (Sec. 2)
❖ Art 36 Family Code - A marriage contracted by any party
who, at the time of the celebration, was psychologically
incapacitated to comply with the essential marital
obligations of marriage, shall likewise be void even if such
incapacity becomes manifest only after its solemnization.
❖ Prescriptible?
➢ No. An action for declaration of nullity of a Void
marriage does not prescribe.
Petition for annulment of voidable marriages
(Sec. 3)
❖ Who may file?
➢ The contracting party whose parent, guardian, or any
person exercising substitute parental authority over
him/her who did not gave their consent to the marriage
within 5 years after attaining 21 years of age unless
after attaining the age of 21 they freely cohabited
with each other as husband or wife; or parent,
guardian, or person having legal charge of the party, at
any time before the latter reaches 21 years old;
Petition for annulment of voidable marriages
(Sec. 3)
➢ Spouse who have no knowledge of the other spouse’s
insanity, or by any relative, guardian, or persons having
legal charge of the insane at any time before the death
of either party, or by the insane spouse on a lucid
interval or after regaining sanity, provided that the
petitioner, after coming to reason, has not freely
cohabited with the other as husband or wife;
Petition for annulment of voidable marriages
(Sec. 3)
➢ The injured party whose consent was obtained by
fraud, within 5 years of the discovery of such fraud,
provided that said party, with full knowledge of the
facts constituting the fraud, has not freely cohabited
with the other as husband or wife;
Petition for annulment of voidable marriages
(Sec. 3)
➢ The injured party whose consent was obtained by force,
intimidation, or undue influence, within 5 years from
the time the force, intimidation, or undue influence
ceased, provided that after said 5 years, the party did
not cohabit with the other party as husband or wife;
Petition for annulment of voidable marriages
(Sec. 3)
➢ The injured party where the other spouse is physically
incapable of consummating the marriage with the other
and such incapability continues and appears to be
incurable, within five years after the celebration of
marriage; and
Petition for annulment of voidable marriages
(Sec. 3)
➢ The injured party where the other party was afflicted
with a sexually-transmissible disease found to be
serious and appears to be incurable, within five years
after the celebration of marriage
Venue
❖ Venue - The place of trial or the geographical location in which an
action or proceeding should be brought (Black’s Law Dictionary).

❖ Venue for AM 02-11-10 cases: Family Court of the place where

petitioner or respondent has resided for at least 6 months prior to
the date of filing.
➢ In case of non-resident respondent: Wherever he may be found
in the Philippines, at the option of petitioner
Contents of petition (Sec. 5)
❖ Must allege complete facts constituting the cause of action;
❖ State the names and ages of the common children and the
governing property regime of the parties, and the properties
involved;
➢ If there's no adequate provisions in written agreement,
petitioner may avail for a provisional order for spousal
support, custody and support of common children, visitation
rights, administration for conjugal property and other
necessary matters.
Contents of petition (Sec. 5)
❖ Verified Certification of non-forum shopping signed by petitioner;
➢ Must be filed by petitioner himself. No other persons.
➢ If petitioner is abroad, verification and certification against
forum shopping shall be authenticated by the duly authorized
officer of the Philippine embassy or legation, consul general,
consul or vice-consul or consular agent.
❖ 6 copies to be filed, with petitioner serving a copy to Office of
Solicitor General and Office of City/Provincial Prosecutor within 5
days from date of filing, and submit proof of filing to court.
Summons (Sec. 6)
❖ Governed by the rules found in Rule 14 of ROC;
❖ Special Rules:
➢ When recipient cannot be found despite diligent search, by
leave of court, summons may be served upon him by
publication in a newspaper of general circulation for once a
week for 2 weeks and in such places where the court may
order. A copy of summons may also be served on recipient's
last known address.
Summons (Sec. 6)
➢ Summons to be published must have the following in order:
■ Case Title
■ Docket number
■ Nature of petition
■ Grounds and reliefs prayed for in petition
■ Directive for respondent to answer within 30 days from
last issue of publication
Answer and Motion to Dismiss (Secs. 7-8)
Motion to Dismiss
❖ No motion to dismiss shall be allowed.
➢ Exceptions:
■ When ground is lack of jurisdiction over subject matter or
over the parties.
■ Exception to Exception: Any other ground that may warrant
a dismissal may be raised in an affirmative defense.
Answer and Motion to Dismiss (Secs. 7-8)
Answer
❖ Respondent must file within:
➢ 15 days from service of summons; or
➢ 30 days from last issue of publication
❖ No default when respondent fails to answer
❖ If there is no answer, or answer does not tender an issue, Court
shall order public prosecutor to investigate for collusion between
parties
Prosecutor’s investigation (Sec. 9)
❖ One month from day of issuance of court order to conduct
investigation
➢ If collusion exists, a report will be submitted to Court within
10 days from finding of collusion. If court finds thru hearing
that there is collusion, case shall be dismissed.
➢ If no collusion, the court shall set the case for pre trial.
Pre-trial (Sec. 11)
❖ Mandatory in nature
❖ Set by the court by itself or by motion:
➢ When the last pleading has been submitted; and
➢ Upon receipt of report that no collusion exists between
parties
❖ Upon setting the case on pre-trial, the court shall issue a
notice to the parties which contains the date of the pre-trial
and an order directing the parties to file their respective
pre-trial briefs
Pre-trial (Sec. 11)
❖ Even if respondent fails to answer, when the court sets the case
for pre-trial, he is to be served a pre-trial notice.
➢ In case of summons by publication, the notice shall be sent to
his last known address
❖ A copy of the parties’ pre-trial briefs shall be given to the other
party aside from the court.
Effect of failure to appear in the Pre-trial
❖ General Rule: Failure to appear is a ground for dismissal of the
case.
❖ Exceptions: When the party’s counsel provides a justified reason for
failure to appear
➢ Exception to exception: When respondent filed his answer and
fails to appear, Court shall start the pre-trial and orders
prosecutor to investigate if the non-appearance is due to
collusion
■ If due to collusion: Case is dismissed
■ If not, Pub. Prosecutor shall intervene in behalf of State to prevent
fabrication or suppression of evidence.
Pre-Trial Order (Sec. 15)
❖ Contains the ff:
➢ matters taken up by conference;
➢ the action taken thereon;
➢ the amendments allowed in the proceedings, and
➢ agreements or admissions made by the parties on any
matter considered, including the necessary provisional
orders if any.
❖ Only issues raised in the Pre Trial order shall be taken up by
the court. The parties cannot raise other issues.
❖ The order shall control the trial proceeding of the case, unless
modified by the court to prevent manifest injustice
❖ Parties have 5 days from receipt of such order to propose
corrections and modifications
Prohibited Compromises (Sec. 16)
❖ The Court shall not allow a compromise on the ff. matters:
➢ Civil Status of persons
➢ Validity of marriage or legal separation
➢ Any ground for legal separation
➢ Future support
➢ Jurisdiction of Courts
➢ Future Legitime
Trial (Sec. 17)
❖ General Rule: Only the presiding judge shall conduct the trial and
thus to him/her only shall the evidence be received.
➢ Exception: In matters involving property relations of the
spouses, a delegation on the reception of evidence to a
commissioner may be done
❖ In cases of absolute declaration of nullity or annulment of
marriage, this must be proved. No judgement on pleadings,
summary judgment or confession of judgement shall be allowed
❖ The court may exclude from the courtroom all persons who have no
interest in the case when necessary
❖ No copy shall be taken, nor any examination or perusal of the
records of the case be done by any person other than a party or
counsel of a party except by order of the court
Filing of Memoranda
❖ After Trial, The court may require the parties to submit a
memoranda to support their claims within 15 days from the
termination of the trial.
❖ After 15 days, the case will be up for decision with or without
memoranda
❖ No other papers may be filed at this point except by leave of court
❖ If the state has interest in the case, court may require the OSG to
file its own memoranda
Decision (Sec. 19)
❖ Upon the grant of the petition (dismissed otherwise), a decree of
absolute nullity or annulment of marriage shall be declared after
compliance with Arts. 50 and 51 of the Family Code (Distribution
of properties)
❖ Decision will be final after 15 days from date of entry. Appeals or
Motions for Reconsideration may be made within this period.
❖ After 15 days without appeal or MR, Court shall issue the above
decree if the spouses have no properties. Otherwise, Sec 21 shall
apply
Sec. 21 - Distribution, liquidation, partition, custody, support of
common children and delivery of presumptive legitimes

❖ Upon judgement, the Court shall proceed in the distribution of the

spouses’ properties pursuant to Arts. 50 and 51 of the Family Code
❖ Only applies if the said properties are not yet distributed by a
separate proceeding for the purpose.
Appeals (Sec. 20)
❖ No appeal shall be made unless a Motion for Reconsideration or
New Trial is filed within the reglementary period of 15 days from
the date of entry of judgement.
❖ When the MR or MNT is denied, the aggrieved party may appeal the
decision within 15 days after the denial of MR or MNT and shall
give copies to the adverse party on the notice of appeal
Issuance and Registration of the Decree of Absolute
Nullity or Annulment
❖ The court shall quote the decree in its dispositive portion of its
decision, and shall order the civil registrar to issue an amended
birth certificate indicating a new civil status for the children
affected, Except the children affected by Arts 36 and 53 of the
Family Code

❖ The prevailing party shall cause the registration of the issued

decree of absolute nullity or annulment in the civil registry where
the marriage is registered, the civil registry where the family
court is situated, and in the National Census and Statistics Office
❖ The registered decree shall be the best evidence in proving the
absolute nullity of marriage or annulment of the spouses and the
civil status of the parties and the affected children and shall
serve as a notice to third persons concerning the properties and
the legitimes to be given to the children.
Effect of Death (Sec. 24)
❖ If a party dies while case is pending, the case is deemed
terminated without prejudice to the settlement of the estate in
the proper proceedings
❖ If a party dies after the entry of judgement, the effects of
judgement will be binding upon the parties and their successors in
interest in the settlement of estate in the proper proceedings.
PROPOSED RULE ON LEGAL
SEPARATION
AM 02-11-11 SC
Introduction
❖ AM 02-11-11 SC now primarily governs the special
procedure on the rules on Legal Separation.

❖ Provisions of the Rules of Court apply suppletorily (Sec. 1)

❖ Took effect on March 15, 2003

Recap - Legal Separation
❖ A remedy available to parties in a valid but failed marriage
for the purpose of obtaining a decree from court, entitling
them to certain reliefs such as the right to live separately
from each other, the dissolution and liquidation of their
absolute community or conjugal partnership regimes, and
the custody of their minor children (Rabuya, Law on
Persons and Family Relations, 2017 Ed., p.505).

❖ A legal separation decree does not sever the marital bond,

nor does authorize the parties to remarry.
Recap - Legal Separation vs Annulment &
Absolute Divorce
❖ A decree of Legal separation does not sever the marital
bond, while in Annulment and Absolute Divorce, the marital
bond is severed.

❖ A decree of Legal separation does not allow the parties to

remarry, while in Annulment and Absolute Divorce,
remarriage is allowed.
Petition for declaration of Legal Separation -
Procedure (Sec. 2)
❖ Who may file?
➢ Only the husband or wife may file (Sec. 2 (a))
❖ Grounds
➢ Physical Violence or grossly abusive conduct
➢ Physical violence or moral pressure to change religious or
political affiliation
➢ Attempt to corrupt or induce to engage in prostitution or
connivance in such corruption and involvement
➢ Final Judgement convicting the spouse to imprisonment of
more than 6 years even if pardoned
➢ Drug addiction or habitual alcoholism
➢ Lesbianism or homosexuality
➢ Contracting of a subsequent bigamous marriage
whether inside or outside of Philippines
➢ Sexual infidelity or perversion
➢ Attempt on the life of the other spouse
➢ Abandonment without just cause for more than 1 year
Contents and Form of Petition (Sec. 2)
❖ The petition shall contain the following:
➢ Complete facts constituting the cause of action
➢ Names and ages of the children, specified regime of
property relations, the properties involved, and
creditors if any
■ A provisional order may be filed for custody and
support of children, administration of community
property and other similar matters
 ➢ Verified certification of non-forum shopping signed by
petitioner
■ In case petitioner is abroad, the certificate shall be
authenticated by the duly authorized officer of the
Philippine Embassy or legation, consul general, vice
consul or consul of that country
❖ The petition must be in six copies and a copy must be
submitted to the City or Provincial Prosecutor and the
creditors if any within 5 days from filing and must submit
proof of such service.
Venue
❖ Where to file
➢ Family court of the place where petitioner or
respondent resided for at least 6 months before date of
filing
➢ If respondent is a nonresident, wherever he may be
found in the Philippines at the option of petitioner.
Summons (Sec. 3)
❖ Governed by the rules found in Rule 14 of ROC;
❖ Special Rules:
➢ When recipient cannot be found despite diligent search, by
leave of court, summons may be served upon him by
publication in a newspaper of general circulation for once a
week for 2 weeks and in such places where the court may
order. A copy of summons may also be served on recipient's
last known address.
➢ Summons to be published must have the following in order:
■ Case Title
■ Docket number
■ Nature of petition
■ Grounds and reliefs prayed for in petition
■ Directive for respondent to answer within 30 days from
last issue of publication
Answer and Motion to Dismiss (Secs. 4 & 5)
Motion to Dismiss
❖ No motion to dismiss shall be allowed.
➢ Exceptions:
■ When ground is lack of jurisdiction over subject matter or
over the parties.
■ Exception to Exception: Any other ground that may warrant
a dismissal may be raised in an affirmative defense.
Answer
❖ Respondent must file within:
➢ 15 days from service of summons; or
➢ 30 days from last issue of publication
❖ No default when respondent fails to answer
❖ If there is no answer, or answer does not tender an issue, Court
shall order public prosecutor to investigate for collusion between
parties
Prosecutor’s investigation (Sec. 6)
❖ One month from day of issuance of court order to conduct
investigation
➢ If collusion exists, a report will be submitted to Court within
10 days from finding of collusion. If court finds thru hearing
that there is collusion, case shall be dismissed.
➢ If no collusion, the court shall set the case for pre trial.
Pre-trial (Sec. 8)
❖ Mandatory in nature
❖ Set by the court by itself or by motion:
➢ When the last pleading has been submitted; and
➢ Upon receipt of report that no collusion exists between
parties
❖ Upon setting the case on pre-trial, the court shall issue a
notice to the parties which contains the date of the pre-trial
and an order directing the parties to file their respective
pre-trial briefs
❖ Even if respondent fails to answer, when the court sets the case
for pre-trial, he is to be served a pre-trial notice.
➢ In case of summons by publication, the notice shall be sent to
his last known address
❖ A copy of the parties’ pre-trial briefs shall be given to the other
party aside from the court.
❖ Failure to file a pre-trial brief is equivalent to failure to attend
the pre-trial
Effect of failure to appear in the Pre-trial
❖ General Rule: Failure to appear is a ground for dismissal of the
case.
❖ Exceptions: When the party’s counsel provides a justified reason for
failure to appear
➢ Exception to exception: When respondent filed his answer and
fails to appear, Court shall start the pre-trial and orders
prosecutor to investigate if the non-appearance is due to
collusion
■ If due to collusion: Case is dismissed
■ If not, Pub. Prosecutor shall intervene in behalf of State to prevent
fabrication or suppression of evidence.
Pre-Trial Order
❖ Contains the ff:
➢ matters taken up by conference;
➢ the action taken thereon;
➢ the amendments allowed in the proceedings, and
➢ agreements or admissions made by the parties on any
matter considered, including the necessary provisional
orders if any.
❖ Only issues raised in the Pre Trial order shall be taken up by
the court. The parties cannot raise other issues.
❖ The order shall control the trial proceeding of the case, unless
modified by the court to prevent manifest injustice
❖ Parties have 5 days from receipt of such order to propose
corrections and modifications
Pre-Trial Conference
❖ Court may refer the issues to a mediator who shall assist in
making the parties reach an agreement on matters not prohibited
by law
➢ Mediator shall report within one month from referral unless
the court extends the same for another month
❖ In case mediation is not available or if it fails, the court will
proceed with the pre-trial conference on which occasion it will
consider the advisability of expert testimony and other matters as
such as may aid in the prompt disposition of the petition
Prohibited Compromises (Sec. 13)
❖ The Court shall not allow a compromise on the ff. matters:
➢ Civil Status of persons
➢ Validity of marriage or legal separation
➢ Any ground for legal separation
➢ Future support
➢ Jurisdiction of Courts
➢ Future Legitime
Trial (Sec. 14)
❖ General Rule: Only the presiding judge shall conduct the trial and
thus to him/her only shall the evidence be received.
➢ Exception: In matters involving property relations of the
spouses, a delegation on the reception of evidence to a
commissioner may be done
❖ Legal Separation must be proved. No judgement on pleadings,
summary judgment or confession of judgement shall be allowed
❖ The court may exclude from the courtroom all persons who have no
interest in the case when necessary
❖ No copy shall be taken, nor any examination or perusal of the
records of the case be done by any person other than a party or
counsel of a party except by order of the court
Filing of Memoranda
❖ After Trial, The court may require the parties to submit a
memoranda to support their claims within 15 days from the
termination of the trial.
❖ After 15 days, the case will be up for decision with or without
memoranda
❖ No other papers may be filed at this point except by leave of court
Decision (Sec 16)
❖ Grounds for denial of the court of a legal separation decree
➢ Condonation of the offense by the aggrieved party or act
complained of;
➢ Connivance in commission of the offense or act constituted as
ground for legal separation;
➢ Both parties have given ground for legal separation;
➢ Collusion in obtaining the legal separation decree; and
➢ Petition barred by prescription
❖ Upon the grant of the petition (dismissed otherwise), a decree of
legal separation shall be declared after compliance with
liquidation proceedings under the Family Code.
➢ If the parties have no more property to liquidate, the court
shall then issue the decree and order its registration in the
Civil registry
❖ The decision shall also declare that:
➢ The spouses are now entitled to live separately but the
marriage bond is not severed
➢ The obligation to give mutual support ceases; and
➢ The offending spouse is disqualified to inherit from innocent
spouse by intestate succession, and provisions in favor of
offending spouse made by the other spouse in his/her will is
revoked by operation of law
Appeals (Sec. 17)
❖ No appeal shall be made unless a Motion for Reconsideration or
New Trial is filed within the reglementary period of 15 days from
the date of entry of judgement.
❖ The aggrieved party or Solicitor General may appeal the decision
by filing a notice of appeal within 15 days after the denial of MR
or MNT and shall give copies to the adverse party on the notice of
appeal
Sec. 18 - Distribution, liquidation, partition, custody, support of
common children and delivery of presumptive legitimes

❖ Upon judgement, the Court shall proceed in the liquidation,

partition, custody, support of the common children and
distribution of the spouses’ properties.
❖ Only applies if the said properties are not yet distributed by a
separate proceeding for the purpose.
Issuance and Registration of the Decree of Legal
Separation
❖ Court shall issue the decree of legal separation after:
➢ Registration of final entry of judgement granting the petition
for legal separation in the civil registry where family court is
located; and
➢ Registration of the approved liquidation, partition, and
distribution of the properties of the spouses
Decree of Legal Separation - Best proof of legal
separation
❖ The registered decree shall be the best evidence in proving the
legal separation of the spouses and serves as a notice to third
persons concerning the properties of the spouses
Effect of Death (Sec. 21)
❖ If a party dies while case is pending, the case is deemed
terminated without prejudice to the settlement of the estate in
the proper proceedings
❖ If a party dies after the entry of judgement, the effects of
judgement will be binding upon the parties and their successors in
interest in the settlement of estate in the proper proceedings.
Petition for revocation of donations (Sec. 22)
❖ Within 5 years from the finality of judgement, the innocent spouse
may file a petition under oath for the revocation of donations in
favor of the offending spouse.
➢ Recorded in the Register of deeds in places where the
properties are registered
➢ Alienations, encumbrances, and liens registered in good faith
shall subsist
➢ In insurance, the offending spouse may be revoked as a
beneficiary to an insurance policy by the other spouse, even if
irrevocable
Decree of Reconciliation (Sec. 23)
❖ When the spouses had reconciled, they must file a joint
manifestation under oath, duly signed by them to the court in the
same proceeding for legal separation.
➢ If filed pending the legal separation proceeding, the court
shall then order to terminate the proceedings.
➢ If filed after the decision of the proceeding but before the
issuance of decree, the spouses must express whether or not to
revive their property regime, or choses a new one.
 ➢ If filed after the issuance of the decree, the court shall set
aside the decree of legal separation and issue a decree of
reconciliation. However, the separation of property and any
forfeiture of the share of the guilty spouse already effected
shall subsist, unless the spouses decides to revive their
property regime or adopt a new one.
❖ In case a new regime is to be adopted, the spouses shall comply
with Sec. 24 thereof.
Sec. 24 - Revival of property regime or adoption of
another
❖ The spouses, in case of reconciliation must file a verified motion
for revival of their property regime of property relations or
adoption of a new property regime in the same proceeding for
legal separation. It shall specify the following:
➢ Properties to be restored or contributed in the revived or new
regime
➢ Properties to be retained by the spouses
➢ Names of all their creditors and amounts they owe to each
❖ The spouses shall then, upon approval of the motion, cause the
publication of the said motion for two consecutive weeks in a
newspaper of general circulation
❖ After due hearing, and the court decides to grant the motion, it
shall order the parties to record the order in the proper registries
of property within 30 days from receipt of the copy of the order
and submit proof of compliance within same period
Thank you for
listening!