SPECIAL PROCEEDINGS proceeding.

It is only when the decedent is a non-

resident of the Philippines at the time of his death
that venue lies in any province in which he had
A foresight to the bar exam estate.

A last minute reminder CAN A PROBATE COURT ISSUE WRITS OF

By: ATTY. GEMY LITO L. FESTIN
Dean, Polytechnic University of the
Philippines
Professor of Criminal Law Review/Remedial
Law subjects, SSC-R and PUP
President, IBP MANILA I
SPECIAL PROCEEDING. It is an application to
establish the status or right of a party or a
particular fact or any remedy other than an
ordinary suit in a court of justice.
DISTINGUISH SPECIAL PROCEEDING FROM AN
ORDINARY ACTION. Pursuant to Rule 1, Section 3
of the 1997 Rules of Civil Procedure, a civil action
is one by which a party sues another for the
enforcement or protection of a right, or the
prevention or redress of a wrong while a special
proceeding under the same rule is a remedy by
which a party seeks to establish a status, a right or
a particular fact. Unlike actions, a special
proceeding is generally commenced by
application, petition or special form of pleading as
EXECUTION? As a rule, the probate court cannot
issue writs of execution. The exceptions are the
following: 1. To satisfy the contributive shares of
the devisees, legatees and heirs on possession of
the decedent’s assets as laid down in Rule 88 Sec.6;
2. To enforce payment of the expenses of partition
under Rule 90 Sec.3; 3. To satisfy the cost when a
person is cited for examination in probate
proceedings under Rule 142 Sec. 13.
RULE 74-SUMMARY SETTLEMENT OF ESTATES
The general rule is: when a person dies
leaving property, the same should be judicially
administered and the competent court should
appoint a qualified administrator, in the order
established in Section 6, Rule 78, in case the
deceased left no will, or in case he had left one,
should he fail to name an executor therein. This
Rule provides exceptions, namely:(1) Extrajudicial
settlement (Sec.1);(2) Summary settlement of
estates of small value (Sec. 2).
DISTINCTION BETWEEN EXTRAJUDICIAL

may be provided for by the particular rule or law. SETTLEMENT AND SUMMARY
ESTATES OF SMALL VALUE. SETTLEMENT OF
SEC. 2, RULE 72 OF THE 1997 RULES OF CIVIL
PROCEDURE PROVIDES THAT IN THE ABSENCE EXTRAJUDICIAL SUMMARY
OF SPECIAL PROVISIONS, THE RULES PROVIDED SETTLEMENT SETTLEMENT
FOR IN ORDINARY ACTIONS SHALL BE, AS FAR 1. Requires no court Requires court
AS PRACTICABLE, APPLICABLE IN SPECIAL intervention. intervention by
PROCEEDINGS. The word “practicable” is defined summary
as possible to practice or perform; capable of proceedings
being put into practice, done or accomplished. 2. The value of the estate Applicable where the
This means that in the absence of special is immaterial. gross value of the
provisions, rules in ordinary actions may be estate is P10,000.00.
applied in special proceedings as much as possible The amount is
and in doing so would not pose an obstacle to said jurisdictional.
proceedings. Nowhere in the Rules of Court can 3. Allowed only in Allowed in both
we find that rules in ordinary actions are intestate succession. testate and intestate
inapplicable or merely suppletory to special estates.
proceedings. 4. Proper when there are available even if there
no outstanding debts of are debts.
JURISDICTION OVER PROBATE PROCEEDING. the estate at the time of
Pursuant to R.A. No. 7691, jurisdiction depends the settlement.
upon the gross value of the estate of the decedent. 5. Instituted by Instituted by any
In Metro Manila, the municipal trial court has agreement of all heirs. interested party and
jurisdiction on the proceeding if the value of the even by a creditor of
estate does not exceed P400, 000.00, otherwise, the estate, without the
the regional trial court has jurisdiction over the consent of all the heirs.
same. Outside Metro Manila, municipal trial
courts, metropolitan trial courts and municipal -Publication does not constitute constructive notice.
circuit trial courts have jurisdiction over probate As held in the case of BENATIRO v. HEIRS OF CUYOS
proceedings if the gross value of the estate left by 560 SCRA 478, Extrajudicial Settlement of Estates
the decedent does not exceed P300,000.00 under Section 1 of Rule 74 is an ex parte
(beginning April 16, 2004). proceeding, and the rule plainly states that persons
who do not participate or had no notice of an
IMPORTANCE OF THE DECEDENT’S RESIDENCE. extrajudicial settlement will not be bound thereby,
The residence of the decedent at the time of his and contemplates a notice that has been sent out or
death is determinative of the venue of the issued before any deed of settlement or partition is

1 | 13
agreed upon, and not after such an agreement has
already been executed; The publication of the
settlement does not constitute constructive notice
to the heirs who had no knowledge or did not take
part in it because the same was notice after the fact
of execution; The requirement of publication is
geared for the protection of creditors and was never
intended to deprive heirs of their lawful
participation in the decedent’s estate.
WHAT IS AN AFFIDAVIT OF SELF-
ADJUDICATION? It is an affidavit required by
Section 1 of Rule 74. The same is to be executed by
the sole heir of a deceased person for the purpose
of adjudicating to himself the entire estate left by
the decedent.
RECENT CASES:
REBUSQUILLO [substituted by her heirs, except Emelinda
R. Gualvez] and OROSCO, Petitioners, vs. SPS. GUALVEZ and
the CITY ASSESSOR OF LEGAZPI CITY, Respondents.
G.R. No. 204029 JUNE 4, 2014
SC Ruling:
It has been ruled that the declaration of heirship
must be made in a special proceeding, not in an independent
civil action. This Court likewise held that recourse to
administration proceedings to determine the heirs is
sanctioned only if there is a good and compelling reason for
such recourse. Hence, the Court had allowed exceptions to the
rule requiring administration proceedings as when the parties
in the civil case already presented their evidence regarding the
issue of heirship, and the RTC had consequently rendered
judgment upon the issues it defined during the pre-trial.
In Portugal v. Portugal-Beltran, the Court held that
the respondent, believing rightly or wrongly that she was the
sole heir to Portugal’s estate, executed on February 15, 1988
the questioned Affidavit of Adjudication under the second
sentence of Section 1, Rule 74 of the Revised Rules of Court.
Said rule is an exception to the general rule that when a person
dies leaving a property, it should be judicially administered
and the competent court should appoint a qualified
administrator, in the order established in Sec. 6 of Rule 78 in
case the deceased left no will, or in case he did, he failed to
name an executor therein.
Petitioners claim, however, to be the exclusive heirs
of Portugal. A probate or intestate court, no doubt, has
jurisdiction to declare who are the heirs of a deceased.
In light of the admission of respondent-spouses
Gualvez, it is with more reason that a resort to special
proceeding will be an unnecessary superfluity. Accordingly, the
court a quo had properly rendered judgment on the validity of
the Affidavit of Self-Adjudication executed by Avelina. As
pointed out by the trial court, an Affidavit of Self-Adjudication
is only proper when the affiant is the sole heir of the decedent.
The second sentence of Section 1, Rule 74 of the Rules of Court
is patently clear that self-adjudication is only warranted when
there is only one heir:
Section 1. Extrajudicial settlement by agreement
between heirs. –– x x x If there is only one heir, he
may adjudicate to himself the entire estate by means
of an affidavit filed in the office of the register of
deeds. x x x (emphasis supplied)
As admitted by respondents, Avelina was not the
sole heir of Eulalio. In fact, petitioner Salvador is one of the co-
heirs by right of representation of his mother. Without a doubt,
Avelina had perjured herself when she declared in the affidavit
that she is "the only daughter and sole heir of spouses
EULALIO ABARIENTOS AND VICTORIA VILLAREAL." The
falsity of this claim renders her act of adjudicating to herself
the inheritance left by her father invalid.
RULE 75-PRODUCTION OF WILL. ALLOWANCE
OF WILL NECESSARY
SEC.1. No will shall pass either real or personal
estate unless it is proved and allowed in the
proper court. Subject to the right of appeal, such
allowance of the will shall be conclusive as to its
due execution.
Principles:
1. the probate of a will is mandatory.
2. Until admitted to probate, [a will] has no effect
and no right can be claimed thereunder.
3. A decree of probate is conclusive with respect to
the due execution of the will and it cannot be
impugned except on the ground of fraud, in any
separate or independent action or proceeding.
Manahan vs. Manahan, 58 Phil. 448, 451
4. In a special proceeding for the probate of a will,
the issue, by and large, is restricted to the extrinsic
validity of the will, i.e. whether the testator, being
of sound mind, freely executed the will in
accordance with the formalities prescribed by law.
As a rule, the question of ownership is an
extraneous matter which the probate court cannot
resolve with finality.
5. The general rule provides that a probate court
cannot decide a question of title of ownership.
Are there any exception to the rule?
The probate court may pass upon the
question of title to property on the following: (a)
The interested parties who are all heirs of the
deceased consent thereto and the interests of third
parties are not prejudiced; (b) In a provisional
manner, to determine whether said property should
be included in or excluded from the inventory,
without prejudice to the final determination of title
in a separate action.
6. Due execution covers the following: 1. The will
was executed in accordance with the strict
formalities of the law; 2. The testator was of sound
and disposing mind at the time of the execution of
the will; 3. Consent is not vitiated by any duress,
fear or threats; 4. The will was not procured by
any undue influence from the beneficiary or by
some other person for his benefit; 5. The signature
of the testator is genuine; 6. The doctrine of
estoppel is not applicable in probate proceedings
since the presentation and the probate of a will
are required by public policy. 7. In a special
proceeding for the probate of a will, the issue by
and large, is restricted to the extrinsic validity of
the will, i.e. whether the testator, being of sound
mind, freely executed the will in accordance with
the formalities prescribed by law. As a rule, the
question of ownership is an extraneous matter
which the probate court cannot resolve with
finality. 8. Section 3, Rule 75 of the Rules of Court
2 | 13
is explicit. A person named as executor in a will
shall, within twenty (20) days after he knows of
the death of the testator, or within twenty (20)
days after he knows that he is named executor if
he obtained such knowledge after the death of the
testator, present such will to the court having
jurisdiction. Considering that Cancio Vidal is
named as executor in the will, he is therefore
obliged to file a petition for probate of the will.
RULE 77-ALLOWANCE OF WILL PROVED
OUTSIDE THE PHILIPPINES
SEC.1 PROVIDES THAT WILLS PROVED AND
ALLOWED IN A FOREIGN COUNTRY,
ACCORDING TO THE LAWS OF SUCH COUNTRY,
MAY BE ALLOWED, FILED, AND RECORDED BY
THE PROPER COURT OF FIRST INSTANCE IN
THE PHILIPPINES.
A WILL PROBATED IN A FOREIGN COUNTRY.
Sec. 1 of Rule 77 provides that a will proved and
allowed in a foreign country must be re- probated
in the Philippines. If the decedent owns properties
in different countries, separate proceedings must
be had to cover the same.
MATTERS NEED TO BE PROVEN DURING A RE-
PROBATE PROCEEDING. At the re-probate
proceedings in the Philippines, the proponent
must prove (a)
the foreign that the
country, (b)testator was
that the domiciled
will has been in
admitted to probate in such country, (c) that the
foreign court was, under the laws of said foreign
country, a probate court with jurisdiction over the
proceedings,(d) the law on probate procedure in
the said foreign country is a proof of compliance
therewith, and (e) the legal requirements in said
foreign country for the valid execution of the will .
RULE 78-LETTERS TESTAMENTARY AND OF
ADMINISTRATION
SEC. 1. WHO ARE INCOMPETENT TO SERVE AS
EXECUTORS OR ADMINISTRATORS.
No person is competent to serve as
executor or administrator who:
(a) is a minor;
(b) is not a resident of the Philippines; and
(c) is in the opinion of the court unfit to execute
the duties of the trust by reason of drunkenness,
improvidence, or want of understanding or
integrity, or by reason of conviction of an
offense involving moral turpitude.
-If no executor is named in the will, or the
executor or executors are incompetent, refuse the
trust, or fail to give bond, or a person dies
intestate, administration shall be granted:
(a) To the surviving husband or wife, as the case
may be, or next of kin, or both, in the discretion of
the court, or to such person as such surviving
husband or wife, or next of kin, requests to have
appointed, if competent and willing to serve;
(b) If such surviving husband or wife, as the case
may be, or next of kin, or the person selected by
them, be incompetent or unwilling, or if the
husband or widow, or next of kin, neglects for
thirty (30) days after the death of the person to
apply for administration or to request that
administration be granted to some other person, it
may be granted to one or more of the principal
creditors, if competent and willing to serve;
(c) If there is no such creditor competent and
willing to serve, it may be granted to such other
person as the court may select.
CAN THE COURT SET ASIDE THE ORDER OF
PREFERENCE UNDER SEC. 6, RULE 78? As a
general rule, the court cannot. The Rules of Court
provides for the order of preference in the
appointment of an administrator. Ventura vs.
Ventura 160 SCRA 810
UNDER WHAT CIRCUMSTANCES MAY THE
COURT REJECT THE ORDER OF PREFERENCE?
In case the persons who have the preferential
right to be appointed
competent or are under the Rules
unwilling to are not
serve,
administration may be granted to such other
person as the court may appoint.
RECENT CASES:
ARANAS,Petitioner, vs. MERCADO, ET. AL,
Respondents.
G.R. No. 156407 January 15, 2014.
SC Ruling:
Under Section 6 (a), Rule 78 of the Rules of Court,
the letters of administration may be granted at the discretion
of the court to the surviving spouse, who is competent and
willing to serve when the person dies intestate. Upon issuing
the letters of administration to the surviving spouse, the RTC
becomes duty-bound to direct the preparation and submission
of the inventory of the properties of the estate, and the
surviving spouse, as the administrator, has the duty and
responsibility to submit the inventory within three months
from the issuance of letters of administration pursuant to Rule
83 of the Rules of Court, viz.:
Section 1. Inventory and appraisal to be returned
within three months. — Within three (3) months
after his appointment every executor or
administrator shall return to the court a true
inventory and appraisal of all the real and personal
estate of the deceased which has come into his
possession or knowledge. In the appraisement of
such estate, the court may order one or more of the
inheritance tax appraisers to give his or their
assistance.
The usage of the word “all” in Section 1, supra,
demands the inclusion of all the real and personal properties of
the decedent in the inventory . However, the word “all” is
qualified by the phrase which has come into his possession or
knowledge, which signifies that the properties must be known
3 | 13
to the administrator as decedent’s properties or are in her
possession as the administrator. Section 1 allows no exception,
for the phrase true inventory implies that no properties which
appear to be owned by the decedent can be excluded from the
inventory, regardless of whether or not they are in the
possession of another person or entity.
The objective of the Rules of Court in requiring the
inventory and appraisal of the estate of the decedent is "to aid
the court in revising the accounts and determining the
liabilities of the executor or the administrator, and in malting a
final and equitable distribution (partition) of the estate and
then to facilitate the administration of the estate." Hence, the
RTC that presides over the administration of an estate is vested
with wide discretion on the question of what properties should
be included in the inventory. According to Peralta v. Peralta,
the CA cannot impose its judgment in order to supplant that of
the RTC on the issue of which properties are to be included or
excluded from the inventory in the absence of "positive abuse
of discretion," for in the administration of the estates of
deceased persons, "the judges enjoy ample discretionary
powers and the appellate courts should not interfere with or
attempt to replace the action t aken by them, unless it be shown
that there has been a positive abuse of discretion." As long as
the RTC commits no patently grave abuse of discretion, its
orders must be respected as part of the regular performance of
its judicial duty.
There is no dispute that the jurisdiction of the trial
court as an intestate court is special and limited. The trial court
cannot adjudicate title to properties which are claimed to be
part of the estate but are claimed to be belonging to third
parties by title adverse to that of the decedent and the estate,
not by virtue of any right of inheritance from the decedent. All
that the trial court can do regarding said properties is to
determine whether or not they should be included in the
inventory of properties to be administered by the
administrator. Such determination is provisional and may be
still revised. As the Court said in Agtarap v. Agtarap:
The general rule is that the jurisdiction of the trial
court, either as a probate court or an intestate court, relates
only to matters having to do with the probate of the will
and/or settlement of the estate of deceased persons, but does
not extend to the determination of questions of ownership that
arise during the proceedings. The patent rationale for this rule
is that such court merely exercises special and limited
jurisdiction.
However, this general rule is subject to exceptions
as justified by expediency and convenience.
First, the probate court may provisionally pass upon
in an intestate or a testate proceeding the question of inclusion
in, or exclusion from, the inventory of a piece of property
without
separate prejudice to final
action. Second, determination
if the of ownership
interested parties intoa
are all heirs
the estate, or the question is one of collation or advancement,
or the parties consent to the assumption of jurisdiction by the
probate court and the rights of third parties are not impaired,
then the probate court is competent to resolve issues on
ownership. Verily, its jurisdiction extends to matters incidental
or collateral to the settlement and distribution of the estate,
such as the determination of the status of each heir and
whether the property in the inventory is conjugal or exclusive
property of the deceased spouse.
RULE 80- SPECIAL ADMINISTRATOR
Sec. 1 provides that when there is delay in
granting letters testamentary or of
administration by any cause including an
appeal from the allowance or disallowance of a
will, the court may appoint a special
administrator to take possession and charge of
the estate of the deceased until the questions
causing the delay are decided and executors or
administrators appointed.
DEFINE A SPECIAL ADMINISTRATOR. A special
administrator is a representative of decedent
appointed by the probate court to care for and
preserve his estate until an executor or general
administrator is appointed.
-The appointment of a special administrator
cannot be the subject of an appeal. No appeal lies
from the appointment of a special administrator.
An order appointing a special administrator is
interlocutory in nature, a mere incident to the
judicial proceedings. The court making the
appointment retains control over it modify,
rescind, or revoke the same on sufficient grounds
at any time before final judgment.
DIFFERENTIATE AN ADMINISTRATOR FROM A
SPECIAL ADMINISTRATOR. The administrator
may be differentiated from a special administrator
in the following manner: 1. An administrator is
appointed when a decedent died intestate or did
not appoint any executor in his will or the will is
subsequently disallowed while a special
administrator is appointed when there is delay in
granting letters testamentary or administration; 2.
An administrator is obliged to pay the debts of the
estate while a special administrator is not; 3. The
appointment of an administrator may be the
subject of appeal while in the appointment of a
special administrator, the order of appointment is
regarded as an interlocutory order and may not be
the subject of appeal.
IS THE PREFERENCE OR ORDER OF
APPOINTMENT UNDER SECTION 6 OF RULE 78
LIKEWISE APPLICABLE IN THE APPOINTMENT
OF A SPECIAL ADMINISTRATOR? Appointment
of special administrator lies entirely in the sound
discretion of the court. The preference laid down
under Section 6 of Rule 78 with respect to the
surviving spouse refers to the appointment of a
regular administrator or administratix and not to
that of a special administrator. Pijuan vs. De
Gurrea, 124 Phil. 1527
IS THE ORDER OF REMOVAL OF AN
ADMINISTRATOR APPEALABLE? Yes, the order
of removal is appealable.
RULE 86-CLAIMS AGAINST ESTATE
SEC. 2. TIME WITHIN WHICH CLAIMS SHALL BE
FILED. - In the notice provided in the preceding
section (sec. 1), the court shall state the time for
the filing of claims against the estate, which
shall not be more than twelve (12) nor less than
six (6) months after the date of the first
publication of the notice. However, at any time
before an order of distribution is entered, on
application of a creditor who has failed to file
his claim within the time previously limited, the
4 | 13
court may, for cause shown and on such terms
as are equitable, allow such claim to be filed
within a time not exceeding one (1) month.
-CLAIMS”.
“STATUTE OF NON It is the period
fixed by Section 2 of Rule 86 for the filing of the
claims against the estate. The rule mandates
certain creditors of a deceased person to present
their claims for examination and allowance within
a specified period, the purpose thereof being to
settle the estate with dispatch, so that the residue
may be delivered to the persons entitled thereto
without their being afterwards called upon to
respond in actions for claims, which, under the
ordinary statute of limitations, have not yet
prescribed. Santos vs. Manarang, 27 Phil. 213
PERIOD WITHIN WHICH THE CLAIM MUST BE
FILED. The range of the period specified in
Section 2 is intended to give the court the
discretion to fix the period for the filing of claims.
The probate court is permitted by the rule to set
the period as long as it is within the limitation
provided. It should not be less than six (6)
months nor more than twelve (12) months from
the day of the first publication of the notice
thereof. Such period when fixed by the probate
court becomes mandatory.
It is clear from Section 2 of Rule 86 that
the period prescribed in the notice to creditors is
not exclusive; that money claims against the estate
may be allowed any time before an order of
distribution is entered, at the discretion of the
court for cause and upon such terms as are
equitable.
RULE 91- ESCHEAT
SEC. 1. WHEN AND BY WHOM PETITION FILED. -
WHEN A PERSON DIES INTESTATE, SEIZED OF
REAL OR PERSONAL PROPERTY IN THE
PHILIPPINES, LEAVING NO HEIR OR PERSON BY
LAW ENTITLED TO THE SAME, THE SOLICITOR
GENERAL OR HIS REPRESENTATIVE IN BEHALF
OF THE REPUBLIC OF THE PHILIPPINES, MAY
FILE A PETITION IN THE COURT OF FIRST
INSTANCE OF THE PROVINCE WHERE THE
DECEASED LAST RESIDED OR IN WHICH HE HAD
ESTATE, IF HE RESIDED OUT OF THE
PHILIPPINES, SETTING FORTH THE FACTS, AND
PRAYING THAT THE ESTATE OF THE DECEASED
BE DECLARED ESCHEATED.
DEFINE ESCHEAT. It is a proceeding whereby the
real and personal property of a deceased person
become the property of the State upon his death
without leaving a will or legal heirs. It is not an
ordinary action, but a special proceeding, and
commenced by petition and not by complaint.
In this jurisdiction, a claimant to an
escheated property must file his claim “within five
(5) years from the date of such judgment, such
person shall have possession of and title to the
same, or if sold, the municipality or city shall be
accountable to him for the proceeds, after
deducting the estate; but a claim not made shall be
barred forever”.
GUARDIANSHIP
ADMINISTRATIVE CIRCULAR N0. 03-02-05-SC
OTHERWISE KNOWN AS “THE RULE ON
GUARDIANSHIP OF MINORS.” This Rule which
took effect on May 1, 2003, governs guardianship
of minors. (Rules 92 to 97 of the Rules of Court no
longer apply to guardianship of minors).
DEFINE GUARDIANSHIP. It is a trust relation of
the most sacred character, in which one person,
called a “guardian” acts for another called the
“ward” whom the law regards as incapable of
managing his own affairs. A guardianship is
designed to further the ward’s well-being not that
of the guardian. It is intended to preserve the
ward’s property, as well as to render any
assistance that the ward may personally require.
WHICH COURT HAS JURISDICTION OVER
GUARDIANSHIP PROCEEDINGS? In guardianship
proceedings involving incompetents who are not
minors, the Regional Trial Court where he resides
has jurisdiction pursuant to the provisions of
Batas Pambansa Blg. 129 as amended. In
guardianship of minors, it is the Family Court
where the minor resides.
WHERE IS THE VENUE OF GUARDIANSHIP
CASES? Venue is the place of residence of the
minor or incompetent person. However, if the
minor or incompetent resides outside the
Philippines (non- resident), the petition may be
filed in the Regional Trial Court of the place where
the property of such minor or incompetent may be
situated.
A guardian, just like a trustee, is
prohibited under Art. 736 of the Civil Code from
making a donation of the properties entrusted to
him.
An order removing a guardian is an order
constituting a final determination of his rights and
consequently said guardian may appeal
therefrom.
ADOPTION
ADOPTION STATUTES LIBERALLY
CONSTRUED. The main purpose of adoption is the
promotion of the welfare of children. Accordingly,
the law should be liberally construed in a manner
that will sustain rather than defeat said purpose.
The law should also be applied with compassion,
understanding and less severity in view of the fact
that it is intended to provide homes, love, care and
education for less fortunate children. Republic vs.
Vergara, 270 SCRA 206.
5 | 13
WHICH COURT HAS JURISDICTION ? According
to Section 6 of the Rules of Adoption, the petition
for adoption shall be filed with the Family Court of
the province or city where the prospective adoptive
parents reside.
WHICH COURT HAS JURISDICTION AND VENUE
OVER INTER-COUNTRY ADOPTION? According
to Section 28 of the Rules of Adoption, a verified
petition to adopt a Filipino child may be filed by a
foreign national or Filipino citizen permanently
residing abroad with the Family Court having
jurisdiction over the place where the child resides
or may be found. It may be filed directly with the
Inter-Country Adoption Board.
COMPARE VENUE OF ADOPTION PROCEEDINGS
FROM GUARDIANSHIP PROCEEDINGS. In
[domestic] adoption proceedings, venue is laid in
the residence of the petitioner or the adopter
whereas in guardianship, it is filed before the
Regional Trial Court of the place where the minor
or incompetent resides.
DEFINE INTER-COUNTRY ADOPTION. According
to the Inter-Country Adoption Act of 1995, it is a
socio-legal process of adopting a Filipino child by
a foreigner or a Filipino citizen permanently
residing abroad where the petition is filed, the
supervised trial custody is undertaken, and the
decree of adoption is issued outside the
Philippines.
COMPARE DOMESTIC ADOPTION FROM INTER-
COUNTRY ADOPTION. The following are the
comparison between domestic adoption and inter-
country adoption, to wit: 1. In domestic adoption,
jurisdiction is under the Family Court where the
adopter resides while in the inter-country
adoption, it is the Family Court having
jurisdiction over the place where the child resides
or may be found. It may be filed directly with the
Inter-Country Adoption Board; 2. In domestic
adoption, application is made by filing a petition
with the Family Court in the Philippines while in
inter-country adoption, application may be
through the agency located in the foreign country;
3. In domestic adoption, as a rule, trial custody
shall be made in the Philippines for six (6) months
while
be in inter-country
mandatory adoption,
in the country of trial custody shall
the adopter; 4. In
domestic adoption, publication of the petition is
necessary while in inter-country adoption, there is
no requirement for publication; 5. In domestic
adoption, petition is allowed to be accompanied
with prayers for change of name, rectification of
simulated birth or declaration that the child is a
foundling, abandoned dependent or neglected
child while in inter-country adoption, there is
none;
CAN AN ADOPTER RESCIND A DECREE OF
ADOPTION? Adoption, being in the best interest of
the child, shall not be subject to rescission by the
adopter(s). However, the adopter(s) may disinherit
the adoptee for causes provided in Article 919 of the
Civil Code.
MAY A PERSON WHO HAS REMARRIED WHEN
THE PETITION FOR ADOPTION WAS FILED
SINGLY ADOPT?
No. Section 7, Article III of RA 8552
provides that a husband and wife shall jointly
adopt, except in the following cases:
(i) if one spouse seeks to adopt the legitimate
son/daughter of the other; or
(ii) if one spouse seeks to adopt his/her own
illegitimate son/daughter: Provided,
however, That the other spouse has
signified
his/her consent thereto; or
(iii) if the spouses are legally separated
from each other.
The use of the word "shall" in the above-
quoted provision means that joint adoption by the
husband and the wife is mandatory. This is in
consonance with the concept of joint parental
authority over the child which is the ideal
situation. As the child to be adopted is elevated to
the level of a legitimate child, it is but natural to
require the spouses to adopt jointly. The rule also
insures harmony between the spouses. IN RE:
PETITION FOR ADOPTION OF MICHELLE AND
MICHAEL LIM, MONINA P. LIM, Petitioner, G.R.
168992-93, May 21, 2009.
RULE 102- HABEAS CORPUS
SEC.1. TO WHAT HABEAS CORPUS EXTENDS. -
Eexcept as otherwise expressly provided by
law, the writ of habeas corpus shall extend to
all cases of illegal confinement or detention by
which any person is deprived of his liberty, or
by which the rightful custody of any person is
withheld from the person entitled thereto.
EXPLAIN THE CONCEPT OF RESTRAINT. Actual
and effective, and not merely nominal or moral,
restraint is required. However, actual physical
restraint is not always required; any restraint
which will prejudice freedom of action is
sufficient. It is more than mere moral restraint; In
fact, the law requires actual or physical
confinement. However, the fact that no physical
force was exerted to keep a person does not make
less real the deprivation of his personal freedom
which includes the freedom of movement,
freedom to transfer from one place to another and
freedom to choose one’s residence.
DEFINE THE WRIT OF HABEAS CORPUS . It is a
writ directed to the person detaining another and
commanding him to produce the body of the
prisoner at a certain time and place, with the day
and the cause of his caption and detention, to do,
and receive whatsoever the court or judge
6 | 13
awarding the writ shall consider in that behalf . THE WRIT OF AMPARO
Bouvier’s Law Dictionary
A. DIAGRAM: DISTINCTIONS OF WRITS OF
DISCUSS THE NATURE OF THE PETITION FOR HABEAS CORPUS, AMPARO AND DATA:
HABEAS CORPUS. Habeas corpus is not in the
nature of a writ of error; nor intended as WRIT OF HABEAS AMPARO HABEAS DATA
CORPUS
substitute for the trial court’s function. LEGAL The Rule was Same Same
BASIS drafted
pursuant to the
1. It cannot take the place of appeal, Supreme Court’s
constitutional
certiorari or writ of error. power to
promulgate
2. The writ cannot be used to investigate rules for the
and consider questions of error that protection and
enforcement of
might be raised relating to procedure or constitutional
rights
on the merits. (Constitution,
3. The inquiry in a habeas corpus Art. VIII, Sec.
5[5]).
proceeding is addressed to the question GOVERNI Rule 102 A.M. No. A.M. No. 08-1-16-SC
NG LAW 07-9-12-SC
of whether the proceedings and the
DEFINITI “Habeas corpus” It is a It is a remedy available to
assailed order are, for any reason, null ON is a Latin phrase remedy any person whose right to
which literally available to privacy in life, liberty or
and void. means “you any person security is violated or
4. The writ is not ordinarily granted where have the body”. whose threatened by an unlawful
Basically, it is a right to life, act or omission of a public
the law provides for other remedies in writ directed to liberty, and official or employee, or of a
the person security private individual or entity
the regular course, and in the absence of detaining has been engaged in the gathering,
exceptional circumstances. another, violated or collecting or storing of data
commanding is or information regarding the
him to produce threatened person, family, home and
the body of the with correspondence of the
MAY A WIFE SECURE A WRIT OF HABEAS prisoner at a violation aggrieved party.
designated time by an
CORPUS TO COMPEL HER HUSBAND TO LIVE and place, with unlawful
WITH HER IN CONJUGAL BLISS? The answer is the day and act or
cause of his omission of
no. Marital rights including coverture and living in capture and a public
detention, to do, official or
conjugal dwelling may not be enforced by the submit to, and employee,
extra-ordinary writ of habeas corpus. To justify the receive or of a
whatsoever the private
grant of the petition, the restraint of liberty must be court or judge individual
awarding the or entity.
an illegal and involuntary deprivation of freedom of writ shall The writ
action. The illegal restraint of liberty must be actual consider in that covers
behalf. extralegal
and effective, not merely nominal or moral. killings and
enforced
disappeara
nces or
CAN A WRIT OF HABEAS CORPUS BE ISSUED IF threats
THE DETENTION IS BY VIRTUE OF VALID thereof.
REMEDY Sec 1 Sec 1 Sec 1
JUDGMENT? No. The writ may not be availed of FOR To any person To any person whose right to
To all cases of whose right to privacy in life, liberty and
when the person in custody is under a judicial illegal life, liberty and security is violated or
process or by virtue of a valid judgment. confinement or security is threatened with violation by an
detention: violated or unlawful act or omission of a
However, the writ may be allowed as a post- 1. By which any threatened public official or employee, or of
person is with violation a private individual or entity
conviction remedy when the proceedings leading deprived of his by an unlawful engaged in:
to the conviction were attended by any of the liberty; or act or 1. Gathering
2. By which the omission of a 2. Collecting
following exceptional circumstances: 1. there rightful custody public official 3. Storing
of any person is or employee, of data or information regarding
was a deprivation of a constitutional right withheld from or of a private the person family, home and
resulting in the restraint of a person; 2. the court the person individual or correspondence of the
entitled thereto entity aggrieved party.
had no jurisdiction to impose the sentence or 3. EFFECTI The Rule took The Rule The Rule took effect on 2
the imposed penalty was excessive, thus voiding VI-TY effect on 1 July
1997
took effect
on 24
February 2008

the sentence as to such excess. October

2007
PETITIO Sec 3 Sec 2 Sec 2
N-ER
RECENT CASES: By the party for By the General rule:
whose relief it is aggrieved The aggrieved party
intended, or by party, or by Except:
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS some other any qualified In cases of extralegal killings
OF MINOR SHANG KO VINGSON YU SHIRLY VINGSON@ person in his person or and enforced disappearances:
behalf entity in the 1. Immediate family;
SHIRLY VINGSON DEMAISIP,
vs. JOVY CABCABAN, order 2. In default of no.1, ascendant,
UDK No. 14817 JANUARY 13, 2014 provided in descendant or collateral relative
Sec. 2 within the 4th civil degree of
consanguinity or affinity.
SC RULING:
VENUE Rule 4 Sec 2 Sec 3 Sec 3
Under Section 1, Rule 102 of the Rules of Court, the Where the SC, CA and SB: SC, CA and SB: Manila;
writ of habeas corpus is available not only in cases of illegal plaintiff resides Manila; RTC:
or where the RTC of the 1. where the petitioner resides;
confinement or detention by which any person is deprived of
defendant place where 2. where the respondent resides
his liberty, but also in cases involving the rightful custody over resides, or in the the threat, act 3. which has jurisdiction over
a minor. The general rule is that parents should have custody case of non- or omission the place where data or
resident was information is gathered etc.
over their minor children but the State has the right to
defendant, committed or All at the option of the
intervene where the parents treat them cruelly and abusively, where he may any of its petitioner
impairing their growth and well-being, and leaving them be found, at the elements
election of the occurred
emotional scars that they carry t hroughout their lives unless
plaintiff.
they are liberated from such parents and properly counseled. EXTENT SC CA and SB: Anywhere Anywhere in the Philippines
OF anywhere in the in the
ENFORC Philippines Philippines

7 | 13
E- RTC: only within (d)Witness
ABILITY its judicial Protection
district Order.
INTERIM Sec 12 Sec 14
RELIEFS 1. Unless for (a)
good cause Temporary
shown, the Protection
The Amparo Rule was intended to
hearing is Order. – The address the intractable problem of "extralegal
adjourned, in court, justice
which event the or judge, upon killings" and "enforced disappearances".
court shall make motion or
an order for the motu proprio,
safe keeping of may order that
the person the petitioner
DEFINITION OF “EXTRALEGAL KILLINGS”.
imprisoned or or the "Extralegal killings" are killings committed
restrained as the aggrieved
nature of the party and any without due process of law, i.e., without legal
case requires; member of the
2. The court or immediate
safeguards or judicial proceedings.
judge must be family be
satisfied that the protected in a
person’s illness government DEFINITION OF "ENFORCED DISAPPEARANCES".
is so grave that agency or by
he cannot be an accredited They are "attended by the following characteristics:
produced person or
without any private
an arrest, detention or abduction of a person by a
danger. institution government official or organized groups or private
capable of
keeping and individuals acting with the direct or indirect
securing their
safety. If the
acquiescence of the government; the refusal of the
petitioner is State to disclose the fate or whereabouts of the
an
organization, person concerned or a refusal to acknowledge the
association or
institution
deprivation of liberty which places such persons
referred to in outside the protection of the law.
Section 3(c) of
this Rule, the
protection
may be KINDS OF WRIT OF AMPARO.
extended to
the officers
involved.
(b)
(1) AMPARO LIBERTAD for the
Inspection protection of personal freedom,
Order.— The
court, justice equivalent to the habeas corpus writ;
or judge, upon
verified
(2) AMPARO CONTRA LEYES for the
motion and judicial review of the
after due

(3)constitutionality of statutes;
hearing, may
order any
person in
AMPARO CASACION for the judicial
possession or review of the constitutionality and
control of a
designated legality of a judicial decision;
land or other
property, to
(4) AMPARO ADMINISTRATIVO for the
permit entry judicial review of administrative
for the
purpose of actions; and
inspecting,
measuring,
(5) AMPARO AGRARIO for the
surveying, or protection of peasants' rights derived
photographing
the property from the agrarian reform process.
or any
relevant object
or operation
thereon.
WHEN IS WRIT OF AMPARO NOT PROPER?
(c)
Production
Order. – The Petitioners’ claim to their dwelling,
court, justice
or judge, upon assuming they still have any despite the final and
verified
motion and
executory judgment adverse to them, does not
after due constitute right to life, liberty and security; There is,
hearing, may
order any therefore, no legal basis for the issuance of the writ
person in
possession,
of amparo.
custody or
control of any
designated The threatened demolition of a dwelling
documents,
papers, books, by virtue of a final order of the court, which in this
accounts,
letters,
case was affirmed with finality by this Court in
photographs, G.R. Nos. 177448, 180768, 177701, 177038 is not
objects or
tangible included among the enumeration of rights stated
things, or
objects in
in Section 1 for which the remedy of a writ of
digitized or amparo is made available.
electronic
form, which
constitute or
contain Evidently, the present controversy arose
evidence
relevant to the
out of a property dispute between the Provincial
petition or the Government and respondents. Oddly, respondents
return, to
produce and also seek the issuance of a writ of habeas data when
permit their
inspection,
it is not even alleged that petitioners are gathering,
copying or collecting or storing data or information regarding
photographing
by or on behalf their person, family, home and correspondence.
of the movant.

8 | 13
Thus, the petition of petitioner is granted. The order
of the court in granting the writ of amparo and writ
of habeas data is declared NULL and VOID.
The restriction on petitioner's right to
travel as a consequence of the pendency of the
criminal case filed against him was not unlawful.
Petitioner also failed to establish that his right to
travel was impaired in the manner and to the
extent that it amounted to a serious violation of
his right to life, liberty, and security, for which
there exists no readily available legal recourse or
remedy. REVEREND FATHER ROBERT P. REYES,
PETITIONER, - VERSUS - COURT OF APPEALS, G. R.
NO. 182161; DECEMBER 3, 2009
MAY THE PRINCIPLE OF “COMMAND
RESPONSIBILITY” BE INVOKED IN AMPARO
PROCEEDINGS TO DETERMINE CRIMINAL
LIABILITY? Writ of Amparo does not determine
criminal guilt requiring proof beyond reasonable
doubt. It only determines responsibility or at least
accountability for the missing person.
DEFINE THE WRIT OF HABEAS DATA. It is a
remedy available to any person whose right to
privacy in life, liberty or security is violated or
threatened by an unlawful act or omission of a
public official or employee, or of a private
individual or entity engaged in the gathering,
collecting or storing of data or information
regarding the person, family, home and
correspondence of the aggrieved party.
RECENT CASES:
BURGOS,Petitioner, vs. GEN. HERMOGENES ESPERON, JR.,
ET.AL,Respondents.
G.R. No. 178497 February 4, 2014
SC RULING:
The Court emphasized that its ROLE in a Writ of
Amparo proceeding is merely to determine whether or not an
enforced disappearance has taken place; to determine who is
responsible or accountable; and to define and impose the
appropriate remedies to address the disappearance.
The beneficial purpose of the Writ of Amparo has
been served in the present case with the CA’s final
determination of the persons responsible and accountable for
the enforced disappearance of Jonas and the commencement of
criminal action against Lt. Baliaga. At this stage, criminal
investigation and prosecution proceedings are already beyond
the reach of the Writ of Amparo proceeding now before the
Court.
The Court held that the full extent of the remedies
envisioned by the Rule on the Writ of Amparo has been served
and exhausted.
INFANT JULIAN YUSAY CARAM vs.
ATTY. MARIJOY D. SEGUI, ATTY. SALLY D. ESCUTIN,
ET. AL, Respondents.
G.R. No. 193652 AUGUST 05, 2014
SC RULING:
Section 1 of the Rule on the Writ of Amparo provides
as follows:
SECTION 1. Petition. – The petition for a writ of
amparo is a remedy available to any person whose
right to life, liberty and security is violated or
threatened with violation by an unlawful act or
omission of a public official or employee, or of a
private imdividual or entity.
The writ shall cover extralegal killings and enforced
disappearances or threats thereof. In the landmark case
of Secretary of National Defense, et al. v. Manalo, et al., this
Court held that:
This pronouncement on the coverage of the writ was
further cemented in the latter case of Lozada, Jr. v. Macapagal-
Arroyo where the Court explicitly declared that as it stands, the
writenforced
and of amparo is confined onlyortoto
disappearances, cases of extrajudicial
threats killings
thereof. As to what
constitutes “enforced disappearance,” the Court in Navia v.
Pardico enumerated the elements constituting “enforced
disappearances” as the term is statutorily defined in Section
3(g) of R.A. No. 9851 to wit:
(a) that there be an arrest, detention, abduction or any form of
deprivation of liberty;
(b)that it be carried out by, or with the authorization, support
or acquiescence of, the State or a political organization;
(c) that it be followed by the State or political organization’s
refusal to acknowledge or give information on the fate or
whereabouts of the person subject of the amparo petition;
and,
(d)that the intention for such refusal is to remove subject
person from the protection of the law for a prolonged
period of time.
In this case, Christina alleged that the respondent
DSWD officers caused her “enforced separation” from Baby
Julian and that their action amounted to an “enforced
disappearance” within the context of the Amparo rule.
Contrary to her position, however, the respondent DSWD
officers never concealed Baby Julian ’s whereabouts. In fact,
Christina obtained a copy of the DSWD’s May 28, 2010
Memorandum explicitly stating that Baby Julian was in the
custody of the Medina Spouses when she filed her petition
before the RTC. Besides, she even admitted in her petition for
review on certiorari that the respondent DSWD officers
presented Baby Julian before the RTC during the hearing held
in the afternoon of August 5, 2010. There is, therefore, no
“enforced disappearance” as used in the context of the Amparo
rule as the third and fourth elements are missing.
Christina’s directly accusing the respondents of
forcibly separating her from her child and placing the latter up
for adoption, supposedly without complying with the
necessary legal requisites to qualify the child for adoption,
clearly indicates that she is not searching for a lost child but
asserting her parental authority over the child and contesting
custody over him.
Since it is extant from the pleadings filed that what
is involved is the issue of child custody and the exercise of
parental rights over a child, who, for all intents and purposes,
has been legally considered a ward of the State, the Amparo
rule cannot be properly applied.
To reiterate, the privilege of the Writ of Amparo is a
remedy available to victims of extra-judicial killings and
enforced disappearances or threats of a similar nature,
regardless of whether the perpetrator of the unlawful act or
omission is a public official or employee or a private individual.
It is envisioned basically to protect and guarantee the right to
life, liberty and security of persons, free from fears and threats
that vitiate the quality of life.
A. DISTINGUSH RULE 103 FROM RULE
108 AND R.A. 9048:
Rule 103 Rule 108 R.A. 9048
Name of Law Change of Cancellation/Correction Clerical Error
Name of Entries in the Civil Act
Registry
Subject Change of full Change or corrections Change of first
Matter name in the civil entries name and
(substantial (substantial nickname and
corrections) corrections) civil entries
(only
9 | 13
 typographical or
clerical errors)
WHAT COURT HAS JURISDICTION? The verified
Who may File A person Any person interested Any person petition must be filed before the Regional Trial
desiring to in any act, event, order having direct
change his or decree concerning and personal Court where the corresponding civil registry is
name. (Section the civil status of interest in the
1) persons which has been correction of a
located.
recorded in the civil clerical or
register. (Section 1) typographical
error in an entry R.A. No. 9048 does not cover clerical error on
and/or change
of first name or surname. Where the entry to be corrected is that
nickname.
(Section 3)
of a surname, even if the error is merely clerical
Venue RTC of the RTC of city or province 1. Local civil and will not affect the status, citizenship, or
province in where the registry office of
which corresponding civil the city or filiation of the person, it must be done judicially.
petitioner registry is located municipality
resides for 3 where the
years prior to record being MAY A PETITION FOR THE CORRECTION OR
filing, or, in the sought to be
City of Manila, corrected or CHANGE OF ENTRIES IN ONE’S IRTH
B
to the Juvenile changed is kept;
and Domestic 2. Local civil CERTIFICATE BE GRANTED BY REASON OF
Relations registrar of the “SEX CHANGE”? To correct simply means “to
Court. place where the
interested party make or set a right; to remove the faults or error
is presently
residing or from” while to change means “to replace
domiciled; something with something else of the same kind
3. Philippine
Consulates; or with something that serves as a substitute.” The
What kind of Judicial Summary proceeding Administrative
proceeding: Proceeding This can be concerted Proceeding
birth certificate of petitioner contained no error.
to an adversarial All entries therein, including those corresponding
proceeding if there are
substantial changes and to his first name and sex, were all correct. No
affect the status of an
individual
correction is necessary. Since the statutory
language of the Civil Register Law was enacted in
CITE VALID GROUNDS FOR CHANGE OF NAME the early 1900s and remains unchanged, it cannot
UNDER RULE 103. be argued that the term “sex” as used then is
something alterable through surgery or something
that allows a post-operative male-to-female
Among the grounds for change of name
transsexual to be included in the category
which have been held valid are:
“female.”Thus, there is no legal basis for his
petition for the correction or change of the entries
(a) when the name is ridiculous, dishonorable or in his birth certificate. ROMMEL JACINTO DANTES
extremely difficult to write or pronounce; SILVERIO vs. REPUBLIC OF THE PHILIPPINES
under G.R. No. 174689 October 22, 2007.
(b) when the change results as a legal
consequence, as in legitimation; WHAT IS CONGENITAL ADRENAL HYPERPLASIA
(CAH)? This condition causes the early or
(c) when the change will avoid confusion; "inappropriate" appearance of male
characteristics. A person, like respondent, with
(d) when one has continuously used and been this condition produces too much androgen, a
known since childhood by a Filipino name, and male hormone.
was unaware of alien parentage;
WHAT ARE THE PRINCIPLES LAID DOWN BY
(e) a sincere desire to adopt a Filipino name to THE SUPREME COURT IN THE CASE OF
erase signs of former alienage, all in good faith and REPUBLIC VS. CAGANDAHAN?
without prejudicing anybody; and
The principles are the following:
(f) when the surname causes embarrassment and
there is no showing that the desired change of 1. Where the person is biologically or
name was for a fraudulent purpose or that the naturally intersex, the determining factor in his
change of name would prejudice public interest. In gender classification would be what the individual,
re: Petition for change of name and/or having reached the age of majority, with good
correction/cancellation of entry in civil registry of Julian reason thinks of his/her sex; Sexual development in
Lin Carulasan Wang also known as Julian Lin Wang, to be cases of intersex persons makes the gender
amended/corrected as Julian Lin Wang, vs. Cebu City Civil classification at birth inconclusive – it is at maturity
Registrar, G.R. no. 159966 March 30, 2005.
that the gender of such persons, like respondent, is
fixed. 2. To the person with Congenital Adrenal
RULE 108. CANCELLATION OR CORRECTION Hyperplasia (CAH) belongs the human right to the
OF ENTRIES IN THE CIVIL REGISTRY pursuit of happiness and of health, and to him
should belong the primordial choice of what courses
WHO MAY FILE PETITION. - Any person of action to take along the path of his sexual
interested in any act, event, order or decree development and maturation. 3. There is merit in
concerning the civil status of persons which the change of name of a person with Congenital
has been recorded in the civil register. Adrenal Hyperplasia (CAH) where the same is the
consequence of the recognition of his preferred
gender.

10 | 13
 As for respondent's change of name under
Rule 103, this Court has held that a change of
name is not a matter of right but of judicial
discretion, to be exercised in the light of the
reasons adduced and the consequences that will
follow. The trial court's grant of respondent's
change of name from Jennifer to Jeff implies a
change of a feminine name to a masculine name.
Considering the consequence that respondent's
change of name merely recognizes his preferred
gender, we find merit in respondent's change of
name. Such a change will conform with the change
of the entry in his birth certificate from female to
male.
UNDER R.A. NO. 9048 OR THE CLERICAL ERROR
ACT, WHAT ARE THE GROUNDS ENUMERATED
FOR CHANGE OF FIRST NAME OR NICKNAME?
Under Sec. 4 of the said law, the petition
for change of first name or nickname may be
allowed in any of the following cases:
(1) The petitioner finds the first name or
nickname to be ridiculous, tainted
with dishonor or extremely difficult
to write or pronounce;
(2) The new first name or nickname has
been habitually and continuously
used by the petitioner and he has
been publicly known by the first
name or nickname in the community;
or (3) The change will avoid
confusion.
RECENT CASES:
REPUBLIC OF THE PHILIPPINES,
Petitioner, vs. MERLINDA
L. OLAYBAR,Respondent
G.R. No. 189538. FEBRUARY 10, 2014
SC RULING:
The issue raised by petitioner is whether or not the
cancellation of entries in the marriage contract which, in effect,
nullifies the marriage may be undertaken in a Rule 108
proceeding. Verily, petitioner raised a pure question of law.
Rule 108 of the Rules of Court provides the
procedure for cancellation or correction of entries in the civil
registry. The proceedings may either be summary or
adversary. If the correction is clerical, then the procedure to be
adopted is summary. If the rectification affects the civil status,
citizenship or nationality of a party, it is deemed substantial,
and the procedure to be adopted is adversary. Since the
promulgation of Republic v. Valencia in 1986, the Court has
repeatedly ruled that "even substantial errors in a civil registry
may be corrected through a petition filed under Rule 108, with
the true facts established and the parties aggrieved by the
error availing themselves of the appropriate adversarial
proceeding." An appropriate adversary suit or proceeding is
one where the trial court has conducted proceedings where all
relevant facts have been fully and properly developed, where
opposing counsel have been given opportunity to demolish the
opposite party's case, and where the evidence has been
thoroughly weighed and considered.
In this case, the entries made in the wife portion of
the certificate of marriage are admittedly the personal
circumstances of respondent. The latter, however, claims that
her signature was forged and she was not the one who
contracted marriage with the purported husband. In other
words, she claims that no such marriage was entered into or if
there was, she was not the one who entered into such contract.
It must be recalled that when respondent tried to obtain a
CENOMAR from the NSO, it appeared that she was married to a
certain Ye Son Sune. She then sought the cancellation of entries
in the wife portion of the marriage certificate.
In filing the petition for correction of entry under
Rule 108, respondent made the Local Civil Registrar of Cebu
City, as well as her alleged husband Ye Son Sune, as parties-
respondents. It is likewise undisputed that the procedural
requirements set forth in Rule 108 were complied with. The
Office of the Solicitor General was likewise notified of the
petition which, in turn, authorized the Office of the City
Prosecutor to participate in the proceedings. More importantly,
trial was conducted where respondent herself, the
stenographer of the court where the alleged marriage was
conducted, as well as a document examiner, testified. Several
documents were also considered as evidence. With the
testimonies and other evidence presented, the trial court found
that the signature appearing in the subject marriage certificate
was different from respondent's signature appearing in some
of her government issued identification cards. The court thus
made a categorical conclusion that respondent's signature in
the marriage certificate was not hers and, therefore, was
forged. Clearly, it was established that, as she claimed in her
petition, no such marriage was celebrated.
Indeed, the Court made a pronouncement in the
recent case of Minoru Fujiki v. Maria Paz Galela Marinay,
Shinichi Maekara, Local Civil Registrar of Quezon City, and the
Administrator and Civil Registrar General of the National
Statistics Office 24 that:
To be sure, a petition for correction or cancellation
of an entry in the civil registry cannot substitute for an action
to invalidate a marriage. A direct action is necessary to prevent
circumvention of the substantive and procedural safeguards of
marriage under the Family Code, A.M. No. 02-11-10-SC and
other related laws. Among these safeguards are the
requirement of proving the limited grounds for the dissolution
of marriage, support pendente lite of the spouses and children,
the liquidation, partition and distribution of the properties of
the spouses and the investigation of the public prosecutor to
determine collusion. A direct action for declaration of nullity or
annulment of marriage is also necessary to prevent
circumvention of the jurisdiction of the Family Courts under
the Family Courts Act of 1997 (Republic Act No. 8369), as a
petition for cancellation or correction of entries in the civil
registry may be filed in the Regional Trial Court where the
corresponding civil registry is located. In other words, a
Filipino citizen cannot dissolve his marriage by the mere
expedient of changing his entry of marriage in the civil registry.
Aside from the certificate of marriage, no such
evidence was presented to show the existence of marriage.
Rather, respondent showed by overwhelming evidence that no
marriage was entered into and that she was not even aware of
such existence. The testimonial and documentary evidence
clearly established that the only "evidence" of marriage which
is the marriage certificate was a forgery. While the Court
maintain that Rule 108 cannot be availed of to determine
the validity of marriage, the Court cannot nullify the
proceedings before the trial court where all the parties
had been given the opportunity to contest the allegations
of respondent; the procedures were followed, and all the
evidence of the parties had already been admitted and
examined. Respondent indeed sought, not the nullification
of marriage as there was no marriage to speak of, but the
correction of the record of such marriage to reflect the
truth as set forth by the evidence. Otherwise stated, in
11 | 13
allowing the correction of the subject certificate of
marriage by cancelling the wife
portion thereof, the trial
court did not, in any way, declare the marriage void as
there was no marriage to speak of.
AMENDMENTS INTRODUCED BY R.A. 10172.
WHAT ARE THE ENTRIES IN THE BIRTH
CERTIFICATE THAT CAN BE CORRECTED?
1. clerical or typographical errors and change of
first name or nickname; and
2. day and month in the date of birth or sex of a
person where it is patently clear that there was
a clerical or typographical error or mistake in
the entry.
DEFINE CLERICAL OR TYPHOGRAPHICAL
ERROR”. “Clerical or Typographical Error” refers
to a mistake committed in the performance of
clerical work in writing, copying, transcribing or
typing an entry in the civil register that is
harmless and innocuous, such as misspelled name
or misspelled place of birth, mistake in the entry
of day and month in the date of birth or the sex of
the person or the like, which is visible to the eyes
or obvious to the understanding, and can be
corrected or changed only by reference to other
existing record or records.
WHAT ARE THE ENTRIES IN THE BIRTH
CERTIFICATE THAT CANNOT BE CHANGED?
(SEC. 2 (3), R.A. NO. 10172)
1. nationality;
2. age; or
3. status of the petitioner.
WHAT ARE THE REQUIREMENTS FOR
CORRECTION OF CLERICAL OR
TYPHOGRAPHICAL ERROR? (SEC.5, R.A. NO.
10172)
-The petition for correction of a clerical or
typographical error, or for change of first name or
nickname, as the case may be, shall be in the form of
an affidavit, subscribed and sworn to before any
person authorized by law to administer oaths. the
affidavit shall set forth facts necessary to establish
the merits of the petition and shall show
affirmatively that the petitioner is competent to
testify to the matters stated. The petitioner shall
state the particular erroneous entry or entries,
which are sought to be corrected and/or the change
sought to be made.
The petition shall be supported with the
following documents:
(1) a certified true machine copy of the certificate
or of the page of the registry book
containing the entry or entries sought to be
corrected or changed;
(2) at least two (2) public or private documents
showing the correct entry or entries upon
which the correction or change shall be based;
and
(3) other documents which the petitioner or the
city or municipal civil registrar or the consul
general may consider relevant and necessary
for the approval of the petition.
WHAT ARE THE REQUIREMENTS FOR
CORRECTION OF DATE OF BIRTH OR THE SEX
OF THE PERSON? (SEC.5, R.A. NO. 10172)
No petition for correction of erroneous
entry concerning the date of birth or the sex of a
person shall be entertained except:
1. if the petition is accompanied by earliest school
record or earliest school documents such as, but not
limited to, medical records, baptismal certificate
and other documents issued by religious
authorities; and
2. in case of change of gender, the petition is
accompanied by a certification issued by an
accredited government physician attesting to the
fact that the petitioner has not undergone sex
change or sex transplant.
The petition for change of first name or
nickname, or for correction of erroneous entry
concerning the day and month in the date of birth
or the sex of a person, as the case may be, shall be
published at least once a week for two (2)
consecutive weeks in a newspaper of general
circulation.
Furthermore, the petitioner shall submit a
certification from the appropriate law
enforcements, agencies that he has no pending case
or no criminal record.
The petition and its supporting papers
shall be filed in three (3) copies to be distributed as
follows: first copy to the concerned city or
municipal civil registrar, or the consul general;
second copy to the office of the civil registrar
general; and third copy to the petitioner.”
RULE 109
APPEALS IN SPECIAL PROCEEDINGS
WHO MAY APPEAL? An interested person may
appeal in special proceedings from an order or
judgment rendered by the court. The interest of
the person must be material and direct, not
merely indirect or contingent. Unless the party has
such material and direct interest, he is precluded
from appealing an order or judgment of the court.
RECENT CASES:
ARANAS,Petitioner, vs. MERCADO, ET. AL,
Respondents.
G.R. No. 156407 JANUARY 15, 2014.
Multiple appeals are permitted in special
proceedings as a practical recognition of the possibility that
material issues may be finally determined at various stages of
the special proceedings. Section 1, Rule 109 of the Rules of
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Court enumerates the specific instances in which multiple
appeals may be resorted to in special proceedings, viz.:

Section 1. Orders or judgments from which appeals

may be taken. — An interested person may appeal in special
proceedings from an order or judgment rendered by a Court of
First Instance or a Juvenile and Domestic Relations Court,
where such order or judgment:

(a) Allows or disallows a will;

(b) Determines who are the lawful heirs of a deceased
person, or the distributive share of the estate to
which such person is entitled;
(c) Allows or disallows, in whole or in part, any claim
against the estate of a deceased person, or any c laim

presented
against it; on behalf of the estate in offset to a claim
(d) Settles the account of an executor, administrator,
trustee or guardian;
(e) Constitutes, in proceedings relating to the
settlement of the estate of a deceased person, or the
administration of a trustee or guardian, a final
determination in the lower court of t he rights of the
party appealing, except that no appeal shall be
allowed from the appointment of a special
administrator; and
(f) Is the final order or judgment rendered in the case,
and affects the substantial rights of t he person
appealing, unless it be an order granting or denying a
motion for a new trial or for reconsideration.

Clearly, the assailed orders of the RTC, being

interlocutory, did not come under any of the instances in which
multiple appeals are permitted.

“I CAN DO ALL THINGS THRU CHRIST WHO GIVES

ME STRENGTH.”

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