Professional Documents
Culture Documents
I I I I
TABLE OF CONTENTS
I. PERSONS ....................................................................................................................................................................................................... 1
PERSON ................................................................................................................................................................. 1 KINDS OF CAPACITY ..................................................................................................................................................... 1 LIMITS ON CAPACITY TO ACT ............................................................................................................................................ 1 KINDS OF PERSONS ..................................................................................................................................................... 1
X. PARENTAL AUTHORITY....................................................................................................................................................................32
DEFINITION ......................................................................................................................................................................................................................32 SUBSTITUTE PARENTAL AUTHORITY EXERCISED BY (IN ORDER) ..........................................................................................................................................33 SPECIAL PARENTAL AUTHORITY EXERCISED BY (ART. 218) ................................................................................................................................................33 RIGHTS AND DUTIES OF PARENTS .....................................................................................................................................................................................33 RIGHTS AND DUTIES OF CHILDREN ....................................................................................................................................................................................33 EFFECT OF PARENTAL AUTHORITY UPON THE PROPERTY OF THE CHILD (ART. 225)..............................................................................................................34 GROUNDS FOR SUSPENSION OF PARENTAL AUTHORITY (ART. 231) .....................................................................................................................................34
I. Persons
I. PERSONS
Person
Any being, natural (CC Art. 40) or juridical (CC Art. 42), susceptible to legal rights and obligations, and can be a subject of legal relations.
Kinds of Capacity
1. JURIDICAL CAPACITY 37) Fitness to be subject of legal relations (CC Art.
RULE Inherent to all natural persons, and can only be extinguished by death. On juridical persons, they gain juridical capacity from the moment they are created. Juridical capacity is just one, indivisible, irreducible, and essentially the same for all men; it is an inherent and ineffaceable attribute of man, and attaches to him by the mere fact of his being a man. 2. CAPACITY TO ACT Power to do acts with legal effect (CC Art. 37) RULE They are acquired, and may be lost. They are also subjects to certain restrictions. Mere existence of a human being does not confer upon him/her a capacity to act. No one has 100% capacity to act, nor does anyone have absolutely no capacity to act. Even though one may have full capacity to act, one still does not reach 100% capacity to act but only close to it. As to infants, though they still have not acquired a capacity to act, this does not mean that they have 0% capacity to act.
Kinds of Persons
1. NATURAL PERSONS Human beings
I. Persons
for public interest or purpose, created by law; c. Corporations, Partnerships, and Associations for private interest or purpose to which the law grants a juridical personality. (CC Art 44) GOVERNING LAWS:
Juridical Person State Governed by Constitution (Defines its organization and limits its rights vis-vis citizens) Charter Charter Corporation Code, Articles Incorporation and By-Laws of
Domicile
For Natural Persons: the place of their habitual residence (CC Art. 50). For Juridical Persons: the place where their legal representation is established, or where they exercise their primary functions, unless there is a law or other provision that fixes the domicile (CC Art. 51). DOMICILE VS. RESIDENCE While domicile is permanent (there is intent to remain), residence is temporary and may be changed anytime (there is no necessary intent to remain). REQUISITES VERA) OF DOMICILE (CALLEGO VS.
RULES Juridical persons may acquire and possess property of all kinds, incur obligations, and bring civil or criminal actions (CC Art. 46) Upon dissolution of corporations or institutions and other entities for public interest, their property and assets shall be disposed of in pursuance of the law or charter creating them. (CC Art. 47)
1. Physical Presence 2. Intent to remain permanently KINDS OF DOMICILE 1. Domicile of Origin Domicile of parents of a person at the time he was born. 2. Domicile of Choice Domicile chosen by a person, changing his domicile of origin. A 3rd requisite is necessary intention not to return to ones domicile as his permanent place. 3. Domicile by Operation of Law (i.e., Article 69, domicile of minor)
III. Marriage
III. MARRIAGE
Marriage
Is: 1. 2. 3. 4. 5. 6. 7. 8. 9. a Special Contract of Permanent Union Between a Man and a Woman entered into in Accordance with law for the Establishment of Conjugal and Family life. It is the Foundation of the Family and an Inviolable Social Institution whose Nature, Consequences, ,and Incidents are governed by Law and not subject to Stipulation, except that Marriage settlements may Fix property relations during the marriage within the Limits provided by this Code. (Art 1, Family Code)
A. MARRIAGE CEREMONY There is no particular form or religious rite required by law. MINIMUM REQUIREMENTS BY LAW 1. The contracting parties appear personally before the solemnizing officer 2. They declare in the presence of at least two witnesses of legal age, 3. That they take each other as husband and wife; 4. The declaration shall be contained in the marriage certificate, 5. Which shall be signed by the contracting parties and their witnesses and attested by the solemnizing officer. (Art. 6, FC) In a marriage in articulo mortis, when one or both parties are unable to sign the marriage certificate, it shall be sufficient for one of the witnesses to write the name of said party, which shall be attested by the solemnizing officer. (Art 6, par. 2) PLACES WHERE MARRIAGE MAY BE CELEBRATED 1. Chambers of the judge or in open court; 2. Church, chapel, or temple 3. Office of the Consul-general, consul, or viceconsul, as the case may be. (Art. 8, FC) Exceptions Marriage in articulo mortis, in a remote place (the barrio or barangay should be so located that there is no means of transportation to enable such party to appear personally before the local civil registrar Art. 29), or where both of the parties request the solemnizing officer in writing, in which case the marriage may be solemnized at a house or place designated by then in a sworn statement.
III. Marriage
B. AUTHORITY OF SOLEMNIZING OFFICERS MARRIAGE MAY BE SOLEMNIZED BY: 1. Any incumbent member of the judiciary within the courts jurisdiction (Art. 7, par. 1); 2. Any priest, rabbi, imam, or minister of any church or religious sect duly authorized by his church or religious sect; He/she must be registered with the civil registrar general (CRG). He/she must be acting within the limits of the written authority granted by the church At least one of the parties must be a member of the church or religious sect to which the solemnizing officer belongs (FC Art. 7, par. 2). 3. Ship captain or airplane chief (FC Art 7, par. 3); Can only solemnize marriages in articulo mortis (when there one or both parties are at the point of death), while the ship is at sea or the plane is in flight, or at stopovers or ports of call (FC Art 31). 4. Any military commander of a unit to which a chaplain is assigned, in the absence of the latter (FC Art 7, par. 4); Can only solemnize marriages in articulo mortis between persons within the zone of military operation, whether members of the armed forces or civilians (Art 32, FC). 5. Consul-general, consul, or vice consul (Art. 7, par. 5) Can solemnize marriages between Filipino citizens abroad. The issuance of the marriage license and the duties of the local civil registrar shall also be performed by said consular official. (Art. 10, FC) 6. Mayors (under the Local Government Code, not found in the Family Code) C. MARRIAGE LICENSE REQUIREMENTS FOR MARRIAGE LICENSE APPLICATION 1. Full name of the contracting party; 2. Place of birth; 3. Age and date of birth; 4. Civil status; 5. If previously married, how, when and where the previous marriage was dissolved or annulled; 6. Present residence and citizenship; 7. Degree of relationship of the contracting parties; 8. Full name, residence and citizenship of the father; 9. Full name, residence and citizenship of the mother; and 10. Full name, residence and citizenship of the guardian or person having charge, in case the contracting party has neither father nor mother and is under the age of twenty-one years (Art. 11, FC)
3. 4.
5.
6.
In case one or both contacting parties are at the point of death (in articulo mortis). (Art. 27) If the residence of either party is so located that there is no means of transportation to enable them to personally appear before the local civil registrar. (Art. 28) Marriage in articulo mortis between passengers or crew members. [May be solemnized by the ship captain or airplane pilot.] (Art. 31) Marriage in articulo mortis between persons within the zone of military operation. [May be solemnized by the military commander of the unit] (Art. 32) Marriages among Muslims or among members of cultural communities, provided they are solemnized in accordance with their customs, rites, or practices. (Art. 33) Marriage between a man and a woman who have lived together as husband and wife for at least five years, without legal impediment to marry each other.
In Ninal v Badayog, the Supreme Court held that there must be no legal impediment during the entire five or more years that the parties are living as husband and wife. Since there is only a difference of one year and eight months since the death of the first wife and the execution of their affidavit, the five-year requirement is not met, even if they have cohabited during the subsistence of the previous marriage. In Madridejo v De Leon, where the parties were married in articulo mortis, the Supreme Court held that the marriage is still valid even if the priest who solemnized the marriage failed to send a copy of the marriage certificate to the municipal secretary. The marriage certificate is not a requisite of marriage but a mere proof that the marriage really existed. And since the marriage was solemnized under exceptional circumstances, there is no need for a marriage license.
III. Marriage
If a Filipino married to a foreigner and the latter subsequently obtains a valid divorce abroad capacitating him./her to remarry, the Filipino spouse shall likewise have the capacity to remarry under the Philippine law (Art 26(2)).
Void Marriages
MARRIAGE IS VOID AB INITIO WHEN: I. UNDER FC ART. 35 1. Contracted by anyone below 18 years old, even with consent of parents 2. Solemnized by anyone not authorized to do so, except when one or both parties believe that the solemnizing officer had authority to do so. 3. There is no marriage license, except in marriage under exceptional circumstances 4. It is bigamous or polygamous, except when first spouse has been absent for four years, or two years under extraordinary circumstances, and the remaining spouse has a well-founded belief that the absent spouse is dead, and is judicially declared presumptively dead. (Art. 41) 5. There is a mistake in identity of the other contracting party 6. The subsequent marriage is void under Art. 53: Marriage is void when Art. 52 is not complied with: There must be a partition and distribution of property after the judgment of annulment of declaration of nullity. The presumptive legitimes of the children must also be delivered and recorded in the appropriate civil registry. II. UNDER FC ART. 36 7. Any contracting party is, at the time of the celebration of the marriage, psychologically incapacitated to comply with the essential marital obligations. III. UNDER FC ART. 37 (INCESTUOUS RELATIONSHIPS) 8. Between ascendants and descendants of any degree, legitimate or illegitimate. 9. Between brothers and sisters, whether full or half-blood, legitimate or illegitimate. IV. UNDER FC ART. 38 (FOR REASONS OF PUBLIC POLICY): 10.Between collateral blood relatives, legitimate or illegitimate, up to the fourth civil degree. 11.Between step-parents and step-children. 12.Between parents-in-law and children-in-law. 13.Between adopting parent and adopted child. 14.Between the surviving spouse of the adopting parent and the adopted child. 15.Between the surviving spouse of the adopted child and the adopter. 16.Between an adopted child and a legitimate child of the adopter. 17.Between adopted children of the same adopter.
1. The burden of proof to show the nullity of the marriage belongs to the plaintiff. 2. The root cause of the psychological incapacity must be: (a) medically or clinically identified, (b) alleged in the complaint, (c) sufficiently proven by the experts, (d) clearly explained in the decision. 3. The incapacity must be proven to be existing at the time of the celebration of the marriage. 4. Such incapacity must also be shown to be medically or clinically permanent of incurable. 5. Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage. 6. The essential marital obligations mist be those embraced by Articles 68 up to 71 of the Family Code as regards the husband and wife as well as Articles 220, 221, and 225 of the same Code in regard to parents and their children. 7. Interpretations given by the national Appellate Matrimonial tribunal of the Catholic Church in the Philippines, while not controlling or decisive, should be given great respect by our courts. 8. The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the state. No decision shall be handed down unless the Solicitor General issues a certification.
III. Marriage
RULE ON BIGAMOUS MARRIAGE (ART. 41): GENERAL RULE Marriage contracted by any person during the subsistence of a previous marriage is VOID EXCEPTION If the first spouse has been absent for four consecutive years, or two years under extraordinary circumstances, and the surviving spouse has a well-founded belief that the spouse is dead, and there is a judicial declaration of presumptive death, without prejudice to the effect of the reappearance of the absent spouse. Exception to the exception When both parties in the subsequent marriage acted in bad faith, the marriage is still void (Art. 44). In People v Mendoza, Mendoza contracted three marriages. He contracted the second marriage during the subsistence of the first marriage. He contracted the third marriage after the death of his first wife. He was prosecuted for bigamy on his third marriage. The Supreme Court held that he is not guilty for bigamy for his third marriage, since his prior subsisting marriage has already been extinguished by the death of his first wife. It is the second marriage that is bigamous. EFFECTS OF TERMINATION OF BIGAMOUS MARRIAGE (FC ART 43): 1. Children considered legitimate 2. Property Regime dissolved and liquidated (party in bad faith shall forfeit his/her share in favor of the common children or children by a previous marriage, and in case there are none, to the innocent spouse) 3. Donation propter nuptias remains valid, (but if the donee contracted marriage in bad faith, donations will be revoked) 4. Insurance benefits innocent spouse may revoke designation of guilty party as beneficiary, even if such designation is irrevocable 5. Succession Rights Party in bad faith disqualified to inherit from innocent spouse, whether testate or intestate 6. Donations - If both parties of subsequent marriage acted in bad faith, any donations and testamentary dispositions made by one party to the other by reason of marriage will be revoked (Art. 44)
2. Parent or guardian
Insanity
1. Sane spouse with no knowledge of the others insanity 2. Legal guardian of insane party 3. Insane party
1. Any time before the death of insane party Free cohabitation of insane party after coming to reason
Voidable Marriages
MARRIAGE MAY BE ANNULLED, WHEN (FC ART 45): 1. One of the parties is 18 or above but below 21, and there is no parental consent. 2. Either party was of unsound mind (insanity). 3. The consent of either party was obtained through fraud (different from mistake in identity):
III. Marriage
Fraud Injured party (defrauded party) Five years after discovery of fraud Free cohabitation after having full knowledge of fraud Free cohabitation after the force has ceased or disappeared Deemed ratified when action prescribes Deemed ratified when action prescribes
Injured party
Impotence
Healthy party
Legal Separation
BED AND BOARD SEPARATION MAY DECREED WHEN THERE IS (ART. 55): BE
STD
Healthy party
DURING PENDENCY OF ACTION: 1. The court shall provide for the support of the spouses, 2. The custody of the common children, giving paramount consideration to their moral and material welfare, their choice of parent with whom they wish to remain. 3. The court shall also provide for visitation rights of other parent. (Art. 49) To prevent collusion between the parties, fabrication or suppression of evidence, the prosecuting attorney or fiscal shall appear on behalf of the State. (Art. 48) EFFECTS OF DECLARATION OF NULLITY OR ANNULMENT: The same as effects of termination of bigamous marriage (Arts. 43, 44), except in the status of children. VOID MARRIAGES VS. VOIDABLE MARRIAGES (SEMPIO-DIY):
Void Marriage 1. Nature 2. Co-validation INEXISTENT from the beginning CANNOT covalidated be Voidable Marriage VALID until annulled by court CAN be covalidated by prescription or free cohabitation ACP exists unless another system is instituted through marriage settlement Children are LEGITIMATE if conceived before decree of annulment
1. Repeated violence or grossly abusive conduct directed against petitioner, a common child, or a child of the petitioner. 2. Physical violence or moral pressure to compel petitioner to change religious or political affiliation. 3. Attempt of respondent to corrupt or induce petitioner, a common child, or child of petitioner, to engage in prostitution or connivance in such corruption or inducement. 4. Final judgment sentencing respondent to imprisonment of more than 6 years, even if pardoned (executive pardon, not pardon from offended party). 5. Drug addiction or habitual alcoholism of respondent. When it existed from the time of celebration, and concealed from petitioner, can be a ground for annulment of marriage. When it occurred only after the marriage, it is only a ground for legal separation, whether concealed or not. 6. Lesbianism or homosexuality of respondent. Ditto on rules on drug addiction. 7. Contracting by respondent of a subsequent bigamous marriage, whether in the Philippines of abroad. 8. Sexual infidelity or perversion. 9. Attempt on the life of petitioner by respondent. There is no need for criminal conviction. 10.Abandonment of petitioner by respondent without justifiable cause for more than one year. In Gandioco v Pearanda, the Supreme Court held that in sexual infidelity as a ground for legal separation, there is no need for prior conviction for concubinage, because legal separation only requires a preponderance of evidence, as opposed to proof beyond reasonable doubt required in concubinage. In fact, a civil action for legal separation based on infidelity may proceed ahead or simultaneously with the criminal action for concubinage, GROUNDS FOR DENYING LEGAL SEPARATION (ART. 56):
3. Effect property
on
4. Legitimacy of children
General rule: Children are ILLEGITIMATE (Art. 165) Exception: In void marriages by reason of psychological incapacity (Art. 36) or non-partition of properties in a
III. Marriage
1. Condonation by aggrieved party 2. Consent by aggrieved party to the commission of the offense 3. Connivance between parties in the commission of the offense 4. Mutual guilt in ground for legal separation 5. Collusion between parties to obtain decree of legal separation 6. Prescription of action for legal separation OTHER GROUNDS FOR DENYING LEGAL SEPARATION 7. Death of either party during pendency of action (Lapuz-Sy v Eufemio) 8. Reconciliation of parties during pendency of action (Art. 66 par.1) RULES ON PROCEEDINGS: LEGAL SEPARATION
1. Prescription Action prescribes in five years from occurrence of cause (Art. 57) 2. Reconciliation period Action cannot be tried before six months have elapsed since the filing of the petition (Art. 58) 3. Attempts on reconciliation Action cannot be tried unless the court has attempted to reconcile the spouses, and determined that despite such efforts, reconciliation is highly improbable (Art. 59) 4. Confession No decree of legal separation shall be based upon a stipulation of facts or a confession of judgment (Art. 60, par. 1) 5. Collusion The court shall assign the prosecuting attorney or fiscal to make sure that there is no collusion between the parties, and that evidence is not fabricated or suppressed (Art. 60, par. 2) 6. After filing the petition for legal separation, the spouses are entitled to live separately (Art. 61, par. 1). 7. Administration of Community or Conjugal Property If there is no written agreement between the parties, the court shall designate one of them or a third person to administer the ACP or CPG. (Art. 61, par. 2) 8. Custody of children The court shall give custody of children to one of them, if there is no written agreement between the spouses. It shall also provide for visitation rights of the other spouse. (Art. 62, cf. Art. 49) EFFECTS OF DECREE FOR LEGAL SEPARATION (ART. 63): 1. Spouses can live separately, but cannot remarry (marriage bonds are not severed). 2. The ACP of CPG shall be dissolved and liquidated, and the share of the guilty spouse shall be forfeited in favor the common children, previous children, or innocent spouse (cf. Art. 42, par. 2). 3. Custody of the minor children shall be awarded to the innocent spouse 4. Guilty spouse shall be disqualified from inheriting from innocent spouse by intestate succession. The provisions in favor of the guilty
B. WIDOWS: A widow may use the deceased husbands surname as though he were still living. (Art. 373, CC) C. MISTRESSES: In Legamia v IAC, the Supreme Court allowed the mistress to use her live-in partners name, since everyone already knew that she was a mistress, so as to avoid confusion.
Rights of Spouses
1. In case the other spouse neglects his or her duties or commit acts which tend to bring danger, dishonor or injury to the family, the aggrieved party may apply the court for relief. (Art. 72) 2. Either spouse may exercise any legitimate profession, without need for consent of the other. The other spouse may only object on valid, serious, and moral grounds. (Art. 73) In case of disagreement, the Court shall decide whether (1) the objection is proper, and (2) benefit has accrued to the family before the objection.
Use of Surname
A. MARRIED WOMEN: A married woman may use: 1. Her maiden first name and surname and add her husband's surname, or 2. Her maiden first name and her husband's surname or 3. Her husband's full name, but prefixing a word indicating that she is his wife, such as Mrs. (Art. 370, CC) The wife has the option to choose which among these names she should use. Should she decide to keep her maiden name, the use of the word may in the provision indicates that she may do so.. (A US Case allowed a woman to keep her maiden name especially because many of her professional relations already know her by that name.) In Yasin v Sharia District Court, the Supreme Court, by way of obiter dictum, said that the woman only has an option and not a duty to use the surname of her husband, as provided for in Art. 370, CC. It also said that when her husband dies, the woman can revert to her old name without need for judicial declaration.
1. Must be in writing (public or private) 2. Signed by the parties 3. Executed before the celebration of the marriage 4. If party needs parental consent, parent/guardian must be a party to the settlement 5. If party is under civil interdiction or other disability (not including insanity), court appointed guardian must be a party 6. Must be registered in local civil registry to affect third persons (If not registered, will not prejudice third persons, ACP will apply) GENERAL RULE: All modifications to the marriage settlement must be made before the marriage is celebrated. EXCEPTIONS: 1. Legal Separation (Art. 63 (2)) In such an instance, the property regime is dissolved. 2. Revival of the former property regime upon reconciliation if the spouses agree (Art. 66 (2)) 3. A spouse may petition the court for: a. Receivership b. Judicial separation of property, or c. The authority to be the sole administrator of the conjugal partnership If the other spouse abandons the other without just cause or fails to comply with his or her obligations to the family. (Art. 128) 4. Judicial Dissolution (Arts. 135 and 136)
FROM
ORDINARY
Ordinary Donations Express acceptance necessary Cannot be made by minors Cannot include future property
If present property is No limit to donation of present property provided legitimes donated and property is not are not impaired absolute community, limited to 1/5 Grounds for revocation - In Art. 86 Grounds for revocation - in donation laws
RULES BEFORE MARRIAGE General Rule Future spouses cannot donate to each other more than 1/5 of their present property (excess shall be considered void) (Art. 84) Exception If they are governed by ACP. DURING MARRIAGE General Rule Spouses cannot donate to each other, directly or indirectly (donations made by spouses to each other during the marriage are void) (Art. 87)
WHAT IS EXCLUDED (RESERVED PROPERTY): 1. Properties acquired by a gratuitous title, i.e. donation, inheritance by testate and intestate succession, including the fruits of such properties Exception: When it was expressly provided by the donor or testator that the property shall form part of the ACP); 2. Properties for personal use, e.g. clothes, toilet articles, books Exception: Pieces of jewelry - they form part of the ACP 3. Properties acquired before the marriage, for those with legitimate descendants with a former marriage (to protect rights of children by a former marriage). PRESUMPTION All properties acquired during the marriage form part of the ACP, unless it be proven that they are excluded. (Art. 93) CHARGES UPON THE ACP (ART. 94): 1. Support a. Support of illegitimate children of either spouse governed by (9) b. Support shall be given to spouses even if they are not living together, except when a spouse leaves the conjugal home without just cause c. Support shall be given to the spouses during pendency of action for legal separation (Art 61) or for annulment of marriage (Art. 49) 2. Debts and Obligations Contracted During Marriage a. Either by both spouses or one of them, with the consent of the other. b. In (2) and (3), creditors need not prove that the debts benefited the family. 3. Debts Contracted by one Spouse Without Consent of the other a. ACP liable only to the extent that the debt benefited the family. b. Reason: spouses are joint administrators of community property, and one should not act without the consent of the other. 4. Tax, Liens, Repairs on Community Property a. Taxes on property itself and its fruits, including any surcharges on real estate taxes. b. Minor repairs are those for mere preservation of property or those caused by ordinary wear and tear; Major repairs include those caused by extraordinary events such as storms , floods, etc.
GENERAL RULE De facto separation does not affect the ACP. EXCEPTIONS 1. Spouse who leaves the conjugal home without just cause shall not be entitled to support. He/She, however, is still required to support the other spouse and the family. 2. If consent is necessary for transaction but is withheld or otherwise unobtainable, authorization may be obtained from the court. 3. Support for family will be taken from the ACP. 4. If ACP is insufficient, spouses shall be solidarily liable. 5. If it is necessary to administer or encumber separate property of spouse who left, spouse present may ask for judicial authority to do this. 6. If ACP is not enough and one spouse has no separate property, spouse who has property is liable for support, according to provisions on support. IN CASE OF ABANDONMENT (ART. 101): Present spouse may petition the court for: a. receivership; b. judicial separation of property; or c. authority to be the sole administrator of the absolute community, subject to precautionary conditions that the court may impose. Spouse is prima facie considered to have abandoned the other spouse and the family if:
COMMON
The proceeds, products, fruits, and income of their separate properties; Everything acquired by them within marriage through their own efforts; Everything acquired by them by chance
Each spouse has his/her own property and his/her own debts. Upon dissolution of marriage or partnership, the net gains or benefits from the partnership shall be divided equally between the spouses, unless they have agreed on another manner of division in their marriage settlement. In De Ansaldo v Sheriff of Manila, the Supreme Court ruled that the spouses are not coowners of the conjugal properties during the marriage and cannot alienate the supposed interest of each in the said properties. The interest of the spouses in the conjugal properties is only inchoate or a mere expectancy and does not ripen into title until it appears after the dissolution and liquidation of the partnership that there are net assets
1. The community property shall be liquidated in the same proceeding for the settlement of the estate of the deceased spouse. 2. If no such judicial settlement proceeding is instituted, surviving spouse shall liquidate the community property either judicially or extra-judicially within one year from the death of the deceased spouse. PROCEDURE FOR LIQUIDATION COMMUNITY PROPERTIES OF MARRIAGES (ART. 104): OF TWO
1. Determine the capital, fruits, and income of each community upon such proof as may be considered according to the rules of evidence. 2. In case of doubt as to which community the existing properties belong, they shall be divided between two communities in proportion to the capital and duration of each.
Becomes conjugal property. Net remainder of ACP divided equally between spouses or heirs. Mutual trust and confidence between spouses; fosters oneness of spouses
5. Liquidation
Easier to liquidate because net remainder of community properties are simply divided between spouses or heirs
2. Purpose, duration, Predetermined by legislator, the law fixing Determined by will of partners. and rules its conditions. 3. Profits Divided equally between spouses, Depends upon respective capitals irrespective of the amount of capital that partners, or upon their agreement they bring into marriage of
4. Equality
No equality between spouses in control, General rule is that all partners have equal management, and disposition, because the rights in administration, management, and law grants the husband some control of partnership. predominance. No juridical personality At precise marriage By law Not particularly for profit moment of celebration Considered a juridical person of At the time agreed upon by partners By agreement of parties; subsidiarily, by law For profit
for Death, legal separation, annulment, JDN, Death, insolvency, civil interdiction, judicial separation of property termination of term, express will of any partner, etc. (Arts 1830-1931) Surviving partners may choose to continue partnership There can be division of profits without dissolution
10. Effect of death of a Dissolution of partnership partner 11. Division properties 12. Management of Only upon dissolution
Joint; in case of disagreement, the Same as individual partners, except when husbands decision shall prevail, wife has one or more partners designated as recourse to courts managers.
6. LIVESTOCK EXISTING AT DISSOLUTION OF PARTNERSHIP IN EXCESS OF WHAT IS BROUGHT BY EITHER SPOUSE TO THE MARRIAGE (ART. 117 (6)) While Art. 159 of the Civil Code classifies as conjugal all animals existing at the dissolution of the partnership "exceeding" that brought to the marriage by each spouse, this particular provision of the Family Code considers, as conjugal all "livestock existing at the dissolution of the partnership in excess of each kind brought to the marriage by either spouse." 7. PROPERTIES ACQUIRED BY CHANCE, SUCH AS WINNINGS FROM GAMBLING OR BETTING (ART. 117 (7)) If a winning lottery or sweepstakes ticket is bought by a spouse with his or her own money or the ticket was given gratuitously by a friend, the prize will be separate property of the spouse who owns the ticket. If, however, the ticket is purchased with conjugal funds, the prize will be conjugal. Presumption A lottery or sweepstakes ticket acquired during the marriage was bought with conjugal funds, and the prize is therefore, conjugal. SPECIAL CASES NOT INCLUDED IN ART. 117 Land obtained by either spouse or by both through a loan is conjugal, and so is the loan, and the spouses will be solidarily liable for said loan with their separate properties if later, the community property is not enough to pay for the same. Where property' belonging to one spouse is converted into another kind totally different in nature from its original form (e.g.; when, a nipa 'swamp is converted into a fishpond), during the marriage the converted property is conjugal in the absence of proof that the expenses of conversion were exclusively for the account of the original owner-spouse. But said owner-spouse is entitled to reimbursement of the value of the original property from the conjugal partnership Money received under the Social Security Act is not conjugal, although-the employeespouse contributes to the SSS with his salaries, but belongs to the designated beneficiary under the Social Security Law Intellectual property, like copyright or patent, should, according to Tolentino, citing Planiol and Ripert, be considered separate property of the spouse who produces or invents or discovers it, this property being of a special type, almost a part of one's person or taken from his personality and the physical or external manifestation of his intellect or genius, that it is not simply a product of one's work or industry but should be considered as pertaining exclusively to its creator Business property like trade-marks, trade names, service marks, business goodwill, and
1. The support of the spouse, their common children, and the legitimate children of either spouse; however, the support of illegitimate children shall be governed by the provisions of this Code on Support; 2. All debts and obligations contracted during the marriage by the designated administratorspouse for the benefit of the conjugal partnership of gains, or by both spouses or by one of them with the consent of the other; 3. Debts and obligations contracted by either spouse without the consent of the other to the extent that the family may have benefited; 4. All taxes, liens, charges, and expenses, including major or minor repairs upon the conjugal partnership property;
DISPOSITION OF PROPERTY Alienation of said property in any form, such as sale, donation, or assignment. ENCUMBRANCE OF PROPERTY Includes a real estate mortgage of immovable property or a chattel mortgage or pledge of personal property of the CPG. Disposition or encumbrance of conjugal property requires the consent or approval by both spouses. Mere awareness of a transaction is NOT consent If the consent cannot be obtained or unjustly withheld, then the other spouse may bring the matter to court and secure judicial authority for said disposition or encumbrance. If there is no consent of the other spouse nor judicial authority, the disposition or encumbrance shall be void. DISPOSITION BY WILL Same rule as Art. 97: Either spouse may dispose by will of his interest in the ACP. (but there is no provision specifically for CPG). DISSOLUTION OF CPG (ART. 128): 1. Prepare inventory, listing separately all the properties of the conjugal partnership and the exclusive properties of each spouse. 2. Amounts advanced by the conjugal partnership in payment of personal debts and obligations of either spouse shall be credited to the conjugal partnership. 3. Each spouse shall be reimbursed for the use of his or her exclusive funds in the acquisition of property or for the value of his or her exclusive property, the ownership of which has been vested by law in the conjugal partnership. 4. The debts and obligations of the conjugal partnership shall be paid out of the conjugal assets. In case of insufficiency of said assets, the spouses shall be solidarily liable for the unpaid balance with their separate properties, in accordance with the provisions of paragraph 2 of Article 121. 5. Whatever remains of the exclusive properties of the spouses shall thereafter be delivered to each of them. 6. Unless the owner had been indemnified from whatever source, the loss or deterioration of movables used for the benefit of the family, belonging to either spouses, even due to fortuitous event, shall be paid to said spouse from the conjugal funds, if any. 7. The net remainder of the conjugal partnership properties, or the profits, which shall be divided equally between husband and wife, unless a different proportion or division was agreed upon in the marriage settlements or
D. Separation Marriage
of
Properties
During
When there is no stipulation between the parties, Separation of Properties takes place only upon judicial order. (Art. 134). Judicial separation of properties may voluntary or because of a sufficient cause. be
SUFFICIENT CAUSES FOR JUDICIAL SEPARATION OF PROPERTIES (ART. 135): 1. Spouse of the petitioner has been sentenced to a penalty which carries with it civil interdiction. 2. Spouse of the petitioner has been judicially declared an absentee. 3. Loss of parental authority of the spouse of petitioner has been decreed by the court. 4. Spouse of the petitioner has abandoned the latter or failed to comply with his or her obligations to the family. 5. The spouse granted the power of administration in the marriage settlements has abused that power. 6. At the time of the petition, the spouses have been separated in fact for at least one year and reconciliation is highly improbable. In the cases provided for in Numbers (1), (2) and (3), the presentation of the final judgment against the guilty or absent spouse shall be enough basis for the grant of the decree of judicial separation of property. In cases provided for in numbers (4), (5), and (6), a preponderance of evidence is required to secure a judicial separation of property.
ADMINISTRATION: Each spouse shall own, dispose, possess, administer, and enjoy his/her own estate, without need for consent of the other. (Art. 145) FAMILY EXPENSES: Each spouse shall contribute to the family expenses, in proportion to their income. In case of insufficiency, the market value of their separate properties. (Art. 146) Liability of spouses to the creditors of the family shall be SOLIDARY. (Art. 146, par. 2)
1. When one spouse becomes the guardian of the other. 2. When one spouse is judicially declared an absentee. 3. When one spouse is sentenced to a penalty which carries with it civil interdiction. 4. When one spouse becomes a fugitive from justice or is in hiding as an accused in a criminal case. If the other spouse is not qualified by reason of incompetence, conflict of interest, or any other just cause, the court shall appoint a suitable person to be the administrator.
Exempted from execution, forced sale, and attachment LIMITATIONS: 1. Each family can have only one family home. No other family home can be established without first dissolving the existing one.
SELLING THE FAMILY HOME (ART. 158) Family home may be sold, alienated, donated, assigned, or encumbered by the owners. REQUIREMENTS 1. the written consent of the person constituting it, 2. his/her spouse, and 3. majority of the beneficiaries of legal age. 4. If there is a conflict, the Court will decide. IN CASE OF DEATH (ART. 159): Family home shall continue despite the death of one or both spouses or of the unmarried head of the family for a period of ten years, or as long as there is a minor beneficiary. The heirs cannot partition the home unless the court finds compelling reasons therefor. REQUISITES FOR CREDITOR TO AVAIL OF THE RIGHT UNDER ARTICLE 160: 1. He must be a judgment creditor; 2. His claim is not among those excepted under Article155, and 3. He has reasonable grounds to believe that the family home is worth more than the maximum amount fixed in Article 157 PROCEDURE TO ARTICLE 160: AVAIL OF RIGHT UNDER
PATERNITY The relationship or status of a person with respect to his or her child (paternity includes maternity). FILIATION The status of a person with respect to his or her parents. TYPES OF FILIATION 1. Natural a. Legitimate (Art. 164) b. Illegitimate (Arts.165, 175, 176) c. Legitimated (Arts. 167-172) 2. By Adoption (R.A. No. 8552 (Domestic Adoption Act) and R.A. No. 8043 (Intercountry Adoption Act)) 3 TYPES OF LEGITIMATE CHILDREN 1. Legitimate proper 2. Legitimated 3. Adopted 2 TYPES OF ILLEGITIMATE CHILDREN 1. Children of parents disqualified to marry each other at conception and marriage. 2. Children of parents qualified to marry each other Only this kind can be legitimated by subsequent marriage.
B. Legitimate Children
DEFINITION conceived conceived conceived conceived OR born DURING marriage during, born after before, born during AND born during
1. The creditor must file a motion in the court proceeding where he obtained a favorable for a writ of execution against the family home. 2. There will be a hearing on the motion where the creditor must prove that the actual value of the family home exceeds the maximum amount fixed by the FC either at the time of its constitution or as a result of improvements introduced thereafter its constitution. 3. If the creditor proves that the actual value exceeds the maximum amount the court will order its sale in execution. 4. If the family home is sold for more than the value allowed, the proceeds shall be applied as follows: a. First, the obligation enumerated in Article 155 must be paid b. Then the judgment in favor of the creditor will be paid, plus all the costs of execution c. The excess, if any, shall be delivered
Any child born conceived or born during marriage of parents (Art. 160) ARTIFICIAL INSEMINATION Impregnation of a female with the semen from a male without sexual intercourse It may be: 1. of the husband (AIH homologous artificial insemination) - LEGITIMATE 2. of a donor (AID heterologous artificial insemination) LEGITIMATE IF RULES ARE FOLLOWED 3. combination of the husbands and a donors (AIC confused or combined artificial insemination) TOLENTINO: If the consent is not written, favor of legitimacy; written consent not essential, other
C. Impugning Legitimacy
GROUNDS TO IMPUGN LEGITIMACY OF A CHILD: 1. PHYSICAL IMPOSSIBILITY It was impossible for the husband to have sex with his wife within the first 120 days (period of conception) of the 300 days which immediately preceded the birth of the child because of: a. Physical incapacity impotence, not sterility. This presumption is so strong that evidence must be so convincing to justify the bastardization (there really is this term) of the child. In the case of Tarleton v. Thompson, the guys penis was cut off but the court still declared him to be the father since even if cut, it was still 3 inches long (long enough to be able to copulate). b. Living Separately Mere remoteness is not sufficient. c. Serious Illness Illness must be serious to absolutely prevent him from having sex. WHY? Because if it is impossible for the husband to have sex with his wife during the said period of 120 days, the child could not be his legitimate child. 2. Biological or other scientific grounds a. Blood grouping tests can determine nonpaternity but not paternity (ex. A-B-O test). b. Human Leukocyte Antigen Test (HLA) can prove identity between child and father with a probability exceeding 98%. c. DNA test d. Vasectomy SEMPIO-DIY: A double vasectomy, together with other pieces of evidence, can show the impossibility of the alleged father siring his supposed child. STA. MARIA: The fact that the husband has undergone vasectomy is not enough proof to rebut the presumption of legitimacy (Cocharan v. Cocharan).
The mother may have declared against its legitimacy; The mother may have been sentenced as an adulteress (Art. 167)
REASONS FOR RULE 1. The mother, in a fit of anger or to arouse jealousy on the part of the husband, might have declared against the childs legitimacy, even if such declaration is untrue. 2. Even the wife, who has had carnal knowledge with her husband and with her paramour, would not be able to tell with certainty who is the real father of her child. 3. The husband, whose honor is offended, might have been able to obtain from his wife through coercion a confession of her guilt of adultery, but this does not mean that the child begotten by her is not that of her husband. TOLENTINO: This provision applies to the child of a wife who was raped. IN CASE OF TWO MARRIAGES OF MOTHER (ART. 168):
Termination of 1st marriage Celebration of 2nd marriage 180 days after celebration of 2nd marriage 300 days after termination of 1st marriage
For the child to be considered the child of the 1st husband, the following requisites must concur: 1. The mother must have married again within 300 days from the termination of her first marriage 2. The child was born within the same 300 days after the termination of the former marriage of its mother 3. The child was born before 180 days after the solemnization of its mother's 2nd marriage For the child to be considered the child of the 2nd husband, the following requisites must concur:
1. To bear the surnames of the father and the mother, in conformity with the provisions of the Civil Code on Surnames; 2. To receive support from their parents, their ascendants, and in proper cases, their brothers and sisters, in conformity with the provisions of this Code on Support; and 3. To be entitled to the legitimate and other successional rights granted to them by the Civil Code.
D. Illegitimate Children
Children born outside of a valid marriage are illegitimate. (Art. 165) PROOF OF FILIATION The same as legitimate children (Art. 175) RIGHTS OF ILLEGITIMATE CHILDREN (ART. 176) 1. To bear the surname of their mother and FATHER(the right to use the fathers surname is granted to them through RA 9255, thereby amending Art. 176) Requirement to use fathers Surname Acknowledgement from father through: The birth certificate; A public document; or A private handwritten instrument; 2. To receive support from their parents, ascendants, and in proper cases, their brothers and sisters; and 3. To the legitime and other successional rights granted by law to legitimate children.
E. Legitimated Children
LEGITIMATION: Remedy by means of which those who in fact were not born in lawful wedlock and should therefore be considered illegitimate children are BY FICTION considered legitimate children, it being supposed that they were born when their parents were validly married. It is an act by which the quality of a legitimate child is conferred upon an illegitimate child. A product of NATURE AND LAW. Legitimation takes place by a subsequent valid marriage between the parents. Annulment in the future does not affect legitimacy.(Art. 178) COMPARED TO ADOPTION Adoption Law merely creates by fiction a relation which did not in fact exist. Legitimation Law merely makes legal what exists by nature. WHO CAN BE LEGITIMATED (ART. 177): 1. Child who is conceived and born outside of wedlock; and 2. At the time of conception, the parents were not disqualified by any impediment to marry each other. i.e. children those who are not disqualified by any impediment to marry each other CHILDREN OF FOLLOWING CANNOT BE LEGITIMATED (BECAUSE OF IMPEDIMENT) 1. Adulterous relationships 2. Incestuous relationships 3. Bigamous relationships 4. Void marriages by reasons of public policy under Art. 38 RULES: 1. RIGHTS: Legitimated children shall enjoy the same rights as legitimate children (Art. 179) 2. RETROACTIVITY: The effects of legitimation shall retroact from the time of the childs birth. (Art. 180) 3. DEATH OF CHILD: When the child dies before the celebration of the marriage, their legitimation shall benefit their descendants. (Art. 181)
VIII. Adoption
VIII. ADOPTION
*Provisions of the Family Code have been amended by RA 8049 (Inter-Country Adoption Act0 and RA 8552(Domestic Adoption Act)
A. Definition
A juridical act which creates between two persons a relationship similar to that which results from legitimate paternity and filiation. ADOPTION VS. LEGITIMATION: SIMILARITIES Both are given status of a child born in lawful wedlock of the parents adopting or legitimizing it. DIFFERENCES
LEGITIMATION Persons affected Only children ADOPTION
Procedure Extrajudicial acts of Always parents decree Who applies Effect Only by parents
both By one parent alone Creates a rel. only between the child and the adopting parent
Same status and rights as a legitimated child not only in rel. to the legitimizing parents but also to other relatives
ADOPTION ONLY BY JUDICIAL DECREE: It is a juridical act, a proceeding in rem Only an adoption made through the court or in pursuance with procedure laid down under Rule 99 of the Rules of Court is valid in this jurisdiction. Cannot be granted administratively. A mere agreement between adopter and parents is neither a valid adoption, nor the mere fact that child has lived with the alleged adopter who has treated him like his own child sufficient to establish a valid adoption. Fact of adoption is not presumed but must be affirmatively proved by the person claiming its existence (through the juridical decree).
VIII. Adoption
FAMILY CODE
Art. 183 Sec. 7 1. person of age (18) a) Any Filipino citizen: o of legal age 2. in possession of fully civil capacity & legal o in possession of full civil capacity & legal rts rights o of good moral character* 3. in a position to support & care for his kids in o not been convicted of any crime involving keeping w/means of the family moral turpitude 4. at least 16yrs older than person to be adopted unless the adopter is the parent by nature or o emotionally & psychologically capable of sp of legitimate parent of person to be caring for children* o in a position to support & care for his/her adopted kids in keeping w/means of the family 5. spouses jointly/married person w/consent of o at least 16 yrs older than adoptee and who is sp except: in a position to support and care for a. when 1 seeks to adopt his own illegit child his/her children in keeping with the b. when 1 sp seeks to adopt the legit child of means of the family. 16 years difference other may be waived when adopter is biological 6. not disqualified under FC 184 parent or is the sp of the adoptees parent Full civil rights b) Any alien possessing the same qualification as must have no curtailment of civil rights so that he above stated for Filipino nationals, provided that: could fully exercise parental authority 1. his country has diplomatic relations w/ RP 2. living in the Phil for at least 3yrs prior to must not be suffering from limitations on capacity filing until decrees entered to act such as minority, insanity or imbecility, deaf3. certified by his diplomatic/consular office mutism, prodigality, and civil interdiction. No prohibition for relatives to adopt one another, except or any appropriate agency that he has leg in cases enumerated capacity to adopt in his country Permits the adoption of illegitimate children by their 4. his govt allows adoptee to enter his own parents because if the latter want to make country as his adopted child amends, they should be encouraged. It shall raise the 5. conditions may be waived for ff: child to a legitimate status. a. former Filipino citizen seeks to adopt relative w/in 4th degree of Art. 184. The following persons may not adopt: consanguinity/affinity* b. one who seeks to adopt legitimate (1) The guardian with respect to the ward prior to the child of his/her Filipino sp* approval of the final accounts rendered upon the c) guardian with respect to the ward after termination of their guardianship relation; termination of guardianship & clearance of his financial accountabilities (2) Any person who has been convicted of a crime involving moral turpitude; Husband &Wife shall jointly adapt except in the ff cases: (3) An alien, except: a.if 1 sp seeks to adopt legit child of other b.if 1 sp seeks to adopt his own illegitimate (a) A former Filipino citizen who seeks to adopt a child w/consent of other spouses relative by consanguinity; * c. spouses are legally separated* In case husband and wife jointly adopt, or one (b) One who seeks to adopt the legitimate child of his spouse adopts the illegitimate son/daughter of or her Filipino spouse; or * the other, joint parental authority shall be exercised by the spouses. (c) One who is married to a Filipino citizen and seeks The adopted or adopter may be single or married, to adopt jointly with his or her spouse a relative by but if married, the consent to the adoption of his or consanguinity of the latter.* her spouse is needed. Age difference of 16 years Aliens not included in the foregoing exceptions may - to give assurance that adopter has the sufficient adopt Filipino children in accordance with the rules on maturity to fill the role of a parent to the inter-country adoptions as may be provided by law. adopted child. Also, to approximate natural (28a, E. O. 91 and PD 603) filiation as much as possible. -
VIII. Adoption
Aliens stricter in adoption by aliens compared to PD 603 because children adopted by aliens suffered cultural and psychological shock and could not adjust to their new lives in the foreign countries Some pedophiles simply abandoned the children after they had satisfied their sexual desires on them in their foreign homes Alleged cases where children were killed for organ transplants in the foreign countries. By restricting, there is some assurance that adopted children will receive love, care and protection
Art. 185 H & W must jointly adopt except: a. when 1 sp seeks to adopt his own illegit child b. when 1 sp seeks to adopt legit child of the other Art. 186 in case sps jointly adopt or 1 sp adopts legit child of other, joint parental authority shall be exercised in accordance w/FC Husband and wife may jointly adopt a child. However, it is not obligatory. One spouse can adopt alone, but the consent of the other is required. If they adopt jointly, they shall have joint parental authority over the adopted child. Reason: to prevent dissension between spouses. TOLENTINO: Legal separation terminates the common life between spouses and the reason for requiring the consent of one spouse for the adoption made by the other no longer exists
VIII. Adoption
Art. 187. The following may not be adopted: (1) A person of legal age, unless he or she is a child by nature of the adopter or his or her spouse, or, prior to the adoption, said person has been consistently considered and treated by the adopter as his or her own child during minority. (2) An alien with whose government the Republic of the Philippines has no diplomatic relations; and (3) A person who has already been adopted unless such adoption has been previously revoked or rescinded. (30a, E. O. 91 and PD 603) Plurality of Adoption A person cannot have two adopting fathers/mothers. But the adoption of a child by a married man will not bar a subsequent adoption of the same child by the wife of the adopting parent (jointly adopted). Upon the death, or when adoption was rescinded or revoked, only then can the child be adopted again by another. Adoption of an adult is not allowed: - he is old enough to take care of himself and does not have to depend on anyone else to do so. If the reason is to share material advantages with the adopted, he can do so by simply giving the latter financial assistance and leaving him something in his will. - The rationale of adoption is to give poor, orphaned, abandoned children the advantages and blessings of having parents who would love, support, protect, rear and educate them until old enough Enumerated who MAY NOT be adopted instead of MAY BE adopted.
D. Pre-Adoption
PRE-ADOPTION counseling services for the biological parents of adoptee, prospective adoptive parents, and prospective adoptee. Section 4 under Art. 111 of Rules and Regulation to implement RA 8552: 1. Biological Parent(s) a. Biological Parents shall be counseled regarding their options: i. to keep the child and avail of services and assistance; ii. avail of temporary child care arrangements such as foster care; or iii. relinquish the child for adoption b. Topics to focus on: i. the loss of parental rights over the child and as a rule, not having further contact with the child; ii. the importance of providing relevant information on the child, their own medical history and family background; iii. the possibility that the child may be placed for adoption within the Philippines or in a foreign country; iv. the possibility that in the future, there may be communication with the child at their or the childs initiative.
v. the right to reconsider his/her decision to relinquish his/her child within six (6) months from signing the Deed of Voluntary Commitment (DVC) subject to assessment by the Department. c. Continuing services shall be provided after relinquishment to cope with feelings of loss, etc. and other services for his/her reintegration to the community. d. The biological parent(s) who decided to keep the child shall be provided with adequate services and assistance to fulfill parental responsibilities. 2. Prospective Adoptive Parent(s) a. Biological Parents shall be counseled regarding their options: i. to disseminate basic information about adoption including the adoption process and procedures and the effects of adoption. ii. to inform them of the general background of children in need of adoptive homes including children with special needs; iii. to develop among prospective adoptive parents a respect for the childs biological origin and an awareness of the importance of telling the child that he/she is adopted. iv. To provide a support group for adoptive parents which shall give them a venue
VIII. Adoption
b. for sharing their adoption experiences. A certificate shall be issued by the Department to the prospective adoptive parents attesting that they have undergone pre-adoption services. The certificate shall be made a pre-requisite of the homestudy.
8. 9.
3. Prospective Adoptee a. A prospective adoptee shall be provided with counseling and other support services appropriate to his/her age and maturity, and in a manner and language that the child comprehends, especially to enable him/her to understand why he/she has been relinquished for adoption. b. In the case of a prospective adoptee whose consent to his/her own adoption is necessary, the social worker/counselor shall consider the childs wishes and opinions, ensure that his/her consent is voluntary and duly inform him/her of the effects of such consent.
10.
E. Adoption Procedure
Article 5, Rules and Regulations to implement RA 8552: Steps 1 and 2 for prospective adopters. Step 3 and 4 for prospective adoptees 1) Application for Adoption. Prior to this, prospective adopters should attend adoption fora and seminar. Reasonable fees and charges are also imposed to adopters. After which, they shall file his/her application for adoption with the Department directly or with a social service office of a local government unit, or with any licensed accredited child placing agency. Spouses shall file their application jointly. 2) Preparation of Home Study Report. Department representatives shall conduct home visits to the applicants to determine whether they have capacity to adopt or not. The following documents/certifications are required: 1. Authenticated birth certificate 2. Marriage Contract or Divorce, Annulment, Declaration of Nullity, or Legal Separation documents; 3. Written consent to the adoption by the legitimate and adopted sons/daughters, and illegitimate sons/daughters if living with the applicant, who are at least ten (10) years old; 4. Physical and medical evaluation by a duly licensed physician and psychological evaluation by a psychologist; 5. NBI/Police Clearance 6. Latest income tax return or any other documents showing financial capability, e.g. Certificate of Employment, Bank Certificate or Statement of Assets and Liabilities; 7. Three (3) character references, namely from the local church/minister, the employer, and a non-relative member of
11.
12.
13.
In the case of an applicant who is residing abroad, but is otherwise qualifies to adopt in the Philippines under the provisions of the Act, the Homestudy report shall be prepared by an accredited foreign adoption agency. However, a certification from the Intercountry Adoption Board shall be required to ensure that said agency is accredited. Disapproval of Adoption Application. Except when found by the social worker that such application can no longer be considered, there shall be no prejudice to future application of said applicants. 3) Certificate Of Availability Of Child For Adoption. No child shall be placed for adoption unless a clearance has been obtained from the
VIII. Adoption
Department adoption. that said child is available for
The Department shall issue the Certificate of Availability for Adoption not later than fifteen (15) days after expiration of the six (6) month period after execution of Deed of Voluntary Commitment by the childs parents or legal or after receipt of entry of judgement in case of involuntary commitment. Copy of the Certificate of Availability for Adoption and Child Study Report shall be sent to the Child Welfare Specialist Group (CWSG) for purpose of placement of the child for adoption. * FOR BIOLOGICAL PARENTS: In all proceedings for adoption, a comprehensive study report prepared by a licensed social worker shall be submitted to the court as proof that the biological parent(s) has been properly counseled and provided other support services: 1. to exhaust all measures to strengthen family ties and keep the child; 2. to ensure that their decision to relinquish their child for adoption is not caused by stress, anxiety or pressure; and to ascertain that such decision does not result in improper financial gain for those involved in it. 4) Supporting Documents Of Child Study Report. The child study report shall be prepared only by a licensed and accredited social worker of the Department or child caring agency not involved in child placement. The following documents shall accompany the child report: 1. Authenticated birth or foundling certificate, when appropriate; 2. Written Consent to adoption by the biological parent(s) or the legal guardian and the written consent of the child if at least ten (10) years old, signed in the presence of the social worker of the Department or child caring agency after proper counseling as prescribed in Section III of these Rules; 3. Death Certificate of biological parents, Decree of abandonment or Deed of Voluntary Commitment, as appropriate; 4. Medical evaluation of the child and his/her parent(s), if available; 5. Psychological Evaluation when appropriate; 6. Picture of the child
5) Submission Of Case Records Of Prospective Adoptees and Prospective Adoptive Parents. Case Records of prospective adoptees and prospective adoptive parents shall be submitted to the concerned Adoption Resource and Referral Office (ARRO) which was established according to Section 23 of the Act for matching. 6) Matching. The matching of the child to an approved adoptive parent(s) shall be carried out
9) Consent to Adoption. If the adjustment of the child/adopter(s) is satisfactory, the social worker shall forward to the Department the final supervisory report which shall include the recommendation for the issuance of the written consent to adoption to be executed by the Department.
VIII. Adoption
10) Filing Of Petition For Adoption. the prospective adoptive parent(s) shall initiate judicial proceeding by filing the petition to adopt not later than 30 days from date of receipt of the Departments written consent to adoption. Issuance of Decree of Adoption and Entry of Judgement. If, after considering the recommendation and reports of the social worker and other evidence, the Court is satisfied that the adopter(s) are qualified to adopt, then an adoption decree and an Entry of Judgement shall be issued. A copy of the decree of adoption shall be forwarded to the Department. Travel Authority of Adopted Child. No adoptee shall be issued a travel authority unless a decree of adoption has already became final and executory. In this respect, the amended birth certificate shall be presented. If for any valid reason the same cannot be presented, the following is required: a. copy of the decree of adoption and entry of judgement b. a certification from the Office of the Solicitor General that the decision is final and executory and that no appeal there from has been filed by the said office. Recording Of The Court Decision. court decision on adoption and the finality of decision shall be submitted to the following not later that thirty (30) days after the court decision has become final and executory: a. b. Local Civil Registry Office of the City/municipality where the court issuing the same is situated Register of Court Decrees
IX. SUPPORT
SUPPORT everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping with the financial capacity of the family (Art. 194)
Kinds of Support
1. Legal that which is required to be given by law 2. Judicial that which is required to be given by court order whether pendente lite or in a final judgment 3. Voluntary or Conventional by agreement An example of conventional support is as follow. X donates land to Y. However X imposes a mode Y has to support Xs mother.
Characteristics of Support
1. Personal 2. Intransmissible 3. Not subject to waiver or compensation with regard to future support Support in arrears can be waived. 4. Exempt from attachment or execution (Art. 205) 5. Reciprocal on the part of those who are by law bound to support each other (Art. 195) 6. Variable (Arts. 201 and 202)
After which, Local Civil Registry Office shall submit one copy of the court decision to the Local Civil Registrar of the city or municipality where the birth of the adopted child was registered. The latter office shall have the duty to prepare the amended certificate of live birth of the adopted child. Then, a copy of of the new birth certificate shall be transmitted by the local civil registrar to the National Statistics Office within 30 days from registration 11) Post Adoption Services. Post Adoption Services which shall include counseling shall be made available by the social workers of the Department, social services unit of the local government, child placing and child caring agencies to develop the adoptee, adopter and the biological parents.
RULES: When two or more are obliged to give support, the payment shall be divided between them in proportion to their resources (Art. 200) The amount of support shall be in proportion to the resources or means of the giver and the necessities of the recipient (Art. 201) Support shall be reduced or increased proportionately according to the reduction or increase in the necessities of the recipient
IX. Support
and resources of the one giving support (Art. 202) Obligation to give support is demandable from the time the person who has a right to receive needs it for maintenance, but it shall not be paid except from the date of judicial or extrajudicial demand (Art. 203) The person obliged to give support has the option to either pay the allowance fixed or receive and maintain in the family dwelling the person who has the right to receive support (Art. 204) The right to receive support and the money or property obtained as support shall not be levied upon on attachment or execution. (Art. 205) When support is given by a stranger without knowledge of the person obliged to give support, the one who paid has the right to be reimbursed, unless it appears that he gave it without intention of being reimbursed (Art. 206) When person obliged to give support unjustly refuses or fails to give support when urgently needed, a third person may furnish support, with a right of reimbursement (Art. 207) In case of contractual support or that given by will, the excess in amount beyond that required for legal support shall be subject to levy on attachment or execution. (Art. 208) Contractual support shall be subject to adjustment whenever modification is necessary due to changes in circumstances manifestly beyond contemplation of the parties. (Art. 209)
X. PARENTAL AUTHORITY
Definition
PARENTAL AUTHORITY (Patria Potestas) the mass of rights and obligations which parents have in relation to the person and property of their children until their emancipation, and even after this under certain circumstances. (Manresa) Parental authority under the Family Code includes parental responsibility. It is the right and duty of parents to protect their children, to care for the in sickness and health, and do whatever may be necessary for their care, maintenance, and preservation. Purpose: The physical preservation and development of children, as well as the cultivation of their intellect, and education of their heart and senses. PARENTAL AUTHORITY INCLUDES: 1. the caring for and rearing of children for civic consciousness and efficiency; 2. the development of the moral, mental and physical character and well-being of said children PARENTAL AUTHORITY MAY ONLY BE WAIVED IN CASES OF: 1. adoption, 2. guardianship, 3. commitment of the child in an entity or institution engaged in child care or in a childrens home. Both parents exercise joint authority over their children In case of disagreement, the fathers decision shall prevail, unless there is judicial order TOLENTINO: wifes authority is subordinated, although subsidiary, to that of the father. WHY FATHERS DECISION? Based on tradition. TOLENTINO: If the child is adopted by only one spouse, then he is under the parental authority of such adopter. Illegitimate children are under the parental authority of the mother (Art. 176, FC) WHO EXERCISES AUTHORITY IN CASES OF DEATH, ABSENCE, REMARRIAGE, OR SEPARATION OF PARENTS? In case one parent is absent or already dead, the present parent (Art. 212). Remarriage shall not affect the parental authority over the children. In case of separation of parents, the parent designated by the court. (Art. 213)
X. Parental Authority
Innocent spouse gets custody of minor children. (Art 63) The court shall take into account all relevant considerations, especially the choice of the child over seven years of age, unless the parent chosen is unfit.
TENDER YEARS PRESUMPTION: NO child under 7 years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise. Examples of compelling reasons are: When the mother is insane; with a communicable disease that might endanger the life or health of the child; or is maltreating the child. Prostitution or infidelity to husband does not make a mother unfit as parent. The court may award custody to third persons, if it is in the best interest of the child. In case of death, absence, or unsuitability of both parents, a surviving grandparent shall exercise substitute parental authority. (Art. 214) If there are several grandparents, the one designated by the court (pursuant to considerations in Art. 212, FC) shall exercise substitute parental authority. Only in case of the parents death, absence, or unsuitability may substitute parental authority be exercised by the surviving grandparent.
In case of foundlings, abandoned neglected or abused children and other children similarly situated, parental authority shall be entrusted in summary judicial proceedings to heads of children's homes, orphanages and similar institutions duly accredited by the proper government agency. (Art. 217)
X. Parental Authority
7. right to a well-rounded development 8. right to a balanced diet, adequate clothing, shelter, proper medical attention, and all basic physical requirements of a healthy life 9. raised in an atmosphere of morality and rectitude 10.education commensurate to his abilities 11.full opportunities for a safe and wholesome recreation 12.protection against exploitation and other bad influences 13.right to the care, assistance and protection of the State 14.right to an efficient and honest government 15.right to grow up as a free individual DUTIES OF CHILDREN (ART.357 CC) 1. obey and honor his parents or guardian 2. respect old relatives and persons holding substitute parental authority 3. exert his utmost for his education and training 4. cooperate with the family in matters for his own good (ART.4 PD603) 5. strive to live an upright and virtuous life 6. love, obey, respect his parents and cooperate with them in strengthening the family 7. extend his love to his brothers and sisters 8. exert his utmost to develop his potentials 9. respect elders, our customs and traditions, the memory of our heroes, duly constituted authorities, the law, and principles of democracy 10.participate actively in civic affairs for his development 11.help in observance of human rights, strengthen freedom everywhere, and world peace DUTIES OF CHILDREN TOWARDS PARENTS (UNDER FAMILY CODE): THEIR
of
Parental
1. Conviction of parent for crime without civil interdiction 2. Treats child with excessive harassment and cruelty 3. Gives corrupting orders, counsel or example 4. Compels child to beg 5. Subjects or allows acts of lasciviousness
1. to always observe and respect reverence toward their parents 2. to obey their parents as long as they are under their parental authority. Other responsibilities of children may be found in Art 4. of PD 603 (Child and Youth Welfare Code) TOLENTINO: The duty to honor the parents does not mean that children are to be deprived of the exercise of any right or prevented from fulfilling any legal, moral, or social obligation.
Effect of Parental Authority Upon the Property of the Child (Art. 225)
The Father and Mother shall jointly exercise legal guardianship over the property of the minor child without court appointment In case of disagreement, the fathers decision shall prevail, unless there is judicial order to the contrary
I I I
Armi Bayot [head] . Keisie Marfil . Paulyne Regalado Theresa Roldan . Lem Arenas Chino Baybay . Tristan Tresvalles . Al Siason