Dual citizenship: A primer on RA 9225 Citizenship Retention and Reacquisition Act of 2003

What is the policy of the State regarding dual citizenship?

All Philippine citizens who become citizens of another country shall be deemed not to have lost their Philippine citizenship under the conditions of RA 9225.

How can Philippine citizenship be reacquired by a Filipino who has been naturalized as a citizen of a foreign country?

Any provision of law to the contrary notwithstanding, natural-born citizens of the Philippine who have lost their Philippine citizenship by reason of their naturalization as citizens of a foreign country are hereby deemed to have re-acquired Philippine citizenship upon taking the following oath of allegiance to the Republic:

“I, _________________________________, solemnly swear (or affirm) that I will support and defend the Constitution of the Republic of the Philippines and obey the laws and legal orders promulgated by the duly constituted authorities of the Philippines; and I hereby declare that I recognize and accept the supreme authority of the Philippines and will maintain true faith and allegiance thereto; and that I impose this obligation upon myself voluntarily with no mental reservation or purpose of evasion.”

Natural-born citizens of the Philippines who, after the effectivity of this Act, become citizens of a foreign country shall retain their Philippine citizenship upon taking the oath stated above.

What is derivate citizenship?

The unmarried child, whether legitimate, illegitimate or adopted, below eighteen (18) years of age, of those who re-acquire Philippine citizenship upon effectivity of RA 9225 shall be deemed citizens of the Philippines.

What are the civil and political rights and responsibilities of those who retain or re-acquire Filipino citizenship?

Those who retain or re-acquire Philippine citizenship under this Act shall enjoy full civil and political rights and be subject to all attendant liabilities and responsibilities under existing laws of the Philippines and the following conditions:

1. Those intending to exercise their right of suffrage must meet the requirements under Section 1, Article V of the Constitution, Republic Act No. 9189 otherwise known as "The Overseas Absentee Voting Act of 2003" and other existing laws;
2. Those seeking elective public office in the Philippines shall meet the qualifications for holding such public office as required by the Constitution and existing laws and, at the time of the filing of the certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath;
3. Those appointed to any public office shall subscribe and swear to an oath of allegiance to the Republic of the Philippines and its duly constituted authorities prior to their assumption of office: Provided, That they renounce their oath of allegiance to the country where they took that oath.
4. Those intending to practice their profession in the Philippines shall apply with the proper authority for a license or permit to engage in such practice; and
5. That right to vote or be elected or appointed to any public office in the Philippines cannot be exercised by, or extended to, those who: (a) are candidates for or are occupying any public office in the country of which they are naturalized citizens; and/or (b) are in active services as commissioned or non-commissioned officers in the armed forces of the country which they are naturalized citizens.

Relevant information: Philippine Retirement Authority

The PRA is a government owned and controlled corporation which was created by virtue of Executive Order No. 1037, which was signed by then President Ferdinand E. Marcos, on 04 July 1985. On 31 August 2001, through Executive Order No. 26, the control and supervision of PRA was transferred to the Board of Investments (BOI) from the Office of the President.

The PRA is mandated to attract foreign nationals and former Filipino citizens to invest, reside and retire in the Philippines with the end-view of accelerating the socio-economic development of the country; contributing to the foreign currency reserve of the economy; and by providing them the best quality of life in the most attractive package.

Filipino divorced by spouse (who's formerly a Philippine citizen) can remarry under Article 26 of the Family Code

Notes: 1. Click the graphic to download a free PDF newsletter on this topic. This PDF is for your personal, non-commercial use only; you must not upload it to any website, blog, file-sharing platform, or the cloud. 2. Please read the related discussions on “Divorce obtained abroad by a Filipino citizen against alien spouse recognized in the Philippines” and “Even if Filipinos get married abroad where divorce is legal, they cannot later on get a divorce that is recognized here in the Philippines”

Issue:

Two Filipino citizens get validly married. One spouse later becomes a foreign citizen. This spouse then obtains a valid divorce decree. The divorce decree allows this spouse to remarry. Can the other spouse (who is still a Filipino citizen) likewise remarry under Philippine law?

Answer:

Yes, according to the Supreme Court ruling in the case of Republic of the Philippines v. Cipriano Orbecido III, G.R. No. 154380, promulgated on October 5, 2005. Ponente of the decision was Justice Leonardo A. Quisumbing.

Article 26 of the Family Code provides:

All marriages solemnized outside the Philippines in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and 38.

Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine law.

Update as of April 25, 2018: “SC recognizes divorce in marriage with foreigners” (Rappler) The Supreme Court (SC) en banc issued a landmark ruling on Tuesday, April 24, recognizing divorce in marriages with foreigners Voting 10-3-1, the SC en banc ruled “that a foreign divorce secured by a Filipino against a foreign spouse is also considered valid in the Philippines, even if it is the Filipino spouse who files for divorce abroad.”

Does Article 26 apply only to a mixed marriage, that is, between a Filipino and a foreigner?

Orbecido’s petition

Orbecido filed with the Regional Trial Court of Molave, Zamboanga del Sur a petition for authority to remarry invoking Paragraph 2 of Article 26 of the Family Code. No opposition was filed. Finding merit in the petition, the RTC granted Orbecido's petition. (The facts of the case are in the latter part of this post.)

Objection by the Office of the Solicitor General

In its petition before the Supreme Court, the Office of the Solicitor General stated that Article 26 applies only to valid mixed marriage, that is, a marriage celebrated between a Filipino citizen and an alien. The proper remedy in Orbecido’s situation, according to the OSG, is to file a petition for annulment or for legal separation. Furthermore, the OSG argues there is no law that governs Orbecido’s situation. The OSG claims that this is a matter of legislation and not of judicial determination.

Supreme Court ruling: Article 26 allows a Filipino citizen — divorced by a Filipino spouse who had acquired foreign citizenship and remarried — to remarry

The Supreme Court rejected the OSG’s claim and in the dispositive (summing up) portion of its decision stated:

• “We are unanimous in our holding that Paragraph 2 of Article 26 of the Family Code should be interpreted to allow a Filipino citizen, who has been divorced by a spouse who had acquired foreign citizenship and remarried, also to remarry.”
  
  
• “The reckoning point is not the citizenship of the parties at the time of the celebration of the marriage, but their citizenship at the time a valid divorce is obtained abroad by the alien spouse capacitating the latter to remarry.”

The Supreme Court’s views and reasoning are enumerated below (boldfacing supplied):

1. Taking into consideration the legislative intent and applying the rule of reason, we hold that Paragraph 2 of Article 26 should be interpreted to include cases involving parties who, at the time of the celebration of the marriage were Filipino citizens, but later on, one of them becomes naturalized as a foreign citizen and obtains a divorce decree. The Filipino spouse should likewise be allowed to remarry as if the other party were a foreigner at the time of the solemnization of the marriage. To rule otherwise would be to sanction absurdity and injustice. Where the interpretation of a statute according to its exact and literal import would lead to mischievous results or contravene the clear purpose of the legislature, it should be construed according to its spirit and reason, disregarding as far as necessary the letter of the law. A statute may therefore be extended to cases not within the literal meaning of its terms, so long as they come within its spirit or intent.

2. If we are to give meaning to the legislative intent to avoid the absurd situation where the Filipino spouse remains married to the alien spouse who, after obtaining a divorce is no longer married to the Filipino spouse, then the instant case must be deemed as coming within the contemplation of Paragraph 2 of Article 26.

3. In view of the foregoing, we state the twin elements for the application of Paragraph 2 of Article 26 as follows:

• There is a valid marriage that has been celebrated between a Filipino citizen and a foreigner; and
• A valid divorce is obtained abroad by the alien spouse capacitating him or her to remarry.

4. The reckoning point is not the citizenship of the parties at the time of the celebration of the marriage, but their citizenship at the time a valid divorce is obtained abroad by the alien spouse capacitating the latter to remarry.

In this case, when Cipriano’s wife was naturalized as an American citizen, there was still a valid marriage that has been celebrated between her and Cipriano. As fate would have it, the naturalized alien wife subsequently obtained a valid divorce capacitating her to remarry. Clearly, the twin requisites for the application of Paragraph 2 of Article 26 are both present in this case. Thus Cipriano, the “divorced” Filipino spouse, should be allowed to remarry.

We are also unable to sustain the OSG’s theory that the proper remedy of the Filipino spouse is to file either a petition for annulment or a petition for legal separation. Annulment would be a long and tedious process, and in this particular case, not even feasible, considering that the marriage of the parties appears to have all the badges of validity. On the other hand, legal separation would not be a sufficient remedy for it would not sever the marriage tie; hence, the legally separated Filipino spouse would still remain married to the naturalized alien spouse.

The facts of the Orbecido case

On May 24, 1981, Cipriano Orbecido III married Lady Myros M. Villanueva at the United Church of Christ in the Philippines in Lam-an, Ozamis City. Their marriage was blessed with a son and a daughter, Kristoffer Simbortriz V. Orbecido and Lady Kimberly V. Orbecido.

In 1986, Cipriano’s wife left for the United States bringing along their son Kristoffer. A few years later, Cipriano discovered that his wife had been naturalized as an American citizen.

Sometime in 2000, Cipriano learned from his son that his wife had obtained a divorce decree and then married a certain Innocent Stanley. She, Stanley and her child by him currently live at 5566 A. Walnut Grove Avenue, San Gabriel, California.

Cipriano thereafter filed with the trial court a petition for authority to remarry invoking Paragraph 2 of Article 26 of the Family Code. No opposition was filed. Finding merit in the petition, the court granted the same. The Republic, herein petitioner, through the Office of the Solicitor General (OSG), sought reconsideration but it was denied.

In its petition before the Supreme Court, the OSG raised a pure question of law: Whether or not respondent can remarry under Article 26 of the Family Code.

As stated above, the Supreme Court rejected the OSG’s stand on Article 26. But the Court also stated that:

The records are bereft of competent evidence duly submitted by respondent concerning the divorce decree and the naturalization of respondent’s wife. It is settled rule that one who alleges a fact has the burden of proving it and mere allegation is not evidence.

Accordingly, for his plea to prosper, respondent herein must prove his allegation that his wife was naturalized as an American citizen. Likewise, before a foreign divorce decree can be recognized by our own courts, the party pleading it must prove the divorce as a fact and demonstrate its conformity to the foreign law allowing it. Such foreign law must also be proved as our courts cannot take judicial notice of foreign laws. Like any other fact, such laws must be alleged and proved. Furthermore, respondent must also show that the divorce decree allows his former wife to remarry as specifically required in Article 26. Otherwise, there would be no evidence sufficient to declare that he is capacitated to enter into another marriage.

Note: This portion of the Court’s decision does not contradict its ruling that a Filipino divorced by a former Filipino citizen can remarry under Article 26, 2nd paragraph. It simply states that Orbecido did not submit the proper evidence before the Regional Trial Court of Molave, Zamboanga del Sur to prove his claims (that his wife became a naturalized US citizen and had later on gotten a divorce, etc). Orbecido could re-file the case, this time submitting the proper evidence, or ask for a re-opening of the proceedings before the RTC.

Heirs and inheritance (Part 11): How to disinherit your children and descendants, legitimate as well as illegitimate

Summary / Definition of terms 1. “Testate or testamentary succession” refers to situations where the person dies leaving a last will. 2. “Legal or intestate succession” refers to situations where the person died without a last will. 3. “Decedent”: the person who dies and whose property is to be divided 4. “Testator”: the person who dies leaving a last will 5. A “notarial will” is prepared and notarized by a notary-public; besides the testator, three attestation witnesses must sign the will. 6. A “holographic will” is completely written, signed, and dated by the person making the will. 7. Article 918 of the New Civil Code states the requisites of a valid disinheritance. 8. Article 919 of the New Civil Code states the grounds for disinheriting children and descendants (grandchildren), legitimate as well as illegitimate. 9. The law is strict in the matter of disinheritance. If the requisites are not complied with, the disinheritance can be set aside. 10. Whether notarial or holographic, the will must be probated before it can be given effect. “Probate” simply means that the will must be filed with and approved by the proper court. If the will has not been probated, ownership of real or personal properties mentioned in the will cannot be transferred to the heirs, and any disinheritance cannot be given effect.

A lot of Filipinos, in their twilight years, have told their children that whoever would take care of them in their time of old age or sickness, would be the one to inherit from them. Those who will not do so will not receive anything by way of inheritance. In some cases, brothers and sisters have fought each other, claiming that those who took care of their parents in their old age are the only ones entitled to inherit.

Here in the Philippines, we have the system of compulsory heirs under the New Civil Code. This simply means that certain individuals have the legal right to inherit from us. The only way we can deprive a compulsory heir of his inheritance is through the process of disinheritance.

Also, under RA 8552 (Domestic Adoption Act of 1998), rescission of adoption is no longer allowed. This means that once adopted, a person cannot be “un-adopted” or “dis-adopted” (if there are such words) by his adoptive parents. What the adoptive parents can do is to disinherit the adopted child.

The law is very strict in the matter of disinheritance. If the requisites are not complied with, the disinheritance can be set aside. You must seek the help of a lawyer-notary public who is well-versed in the requisites stated in the New Civil Code of the Philippines. (Please read the discussion below on the two kinds of will, notarial and holographic.)

Grounds for disinheriting children and descendants

Article 919 of the New Civil Code provides the grounds for disinheriting children and descendants (grandchildren), legitimate as well as illegitimate.  The word “testator” mentioned several times below refers to the person making a last will. The disinheritance must be done through a will.

1. When a child or descendant has been found guilty of an attempt against the life of the testator, his or her own spouse, descendants or ascendants;

2. When a child or descendant has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation groundless;

3. When a child or descendant has been convicted of adultery or concubinage with the spouse of the testator;

4. When a child or descendant by fraud, violence, intimidation or undue influence causes the testator to make a will or to change one already made;

5. A refusal without justifiable cause to support the parent or ascendant who disinherits such child or descendant;

6. Maltreatment of the testator by word or deed, by the child or descendant;

7. When a child or descendant leads a dishonorable or disgraceful life;

8. Conviction of a crime with the penalty of civil interdiction.

Requisites for valid disinheritance of children and descendants

The requisites of valid disinheritance under Art. 918 of the New Civil Code are:

• It must be done in a valid will;


• It must be express;


• There must be a true cause;


• The cause must be existing;


• It must be total and complete;


• The cause must be stated in the will;


• The heir disinherited must be identified;


• The will must not have been revoked.

Two kinds of will: notarial and holographic

Under the New Civil Code of the Philippines, there are two kinds of wills: (1) notarial will, and (2) holographic will. As the name denotes, a “notarial will” is prepared and notarized by a notary-public. On the other hand, a “holographic will” is completely written, signed and dated by the person making the will (called the “testator”).

Disinheritance through a “Kasulatan ng Pag-Aalis ng Mana”

For more information about holographic wills, please read the Supreme Court decision in Dy Yieng Sangio vs. Reyes G.R. Nos. 140371-72 November 27, 2006. In this case, the testator executed a document entitled “Kasulatan ng Pag-Aalis ng Mana” where he disinherited his oldest child. The Supreme Court ruled:

The document, although it may initially come across as a mere disinheritance instrument, conforms to the formalities of a holographic will prescribed by law. It is written, dated and signed by the hand of the testator himself. An intent to dispose mortis causa (upon death) can be clearly deduced from the terms of the instrument, and while it does not make an affirmative disposition of the latter’s property, the disinheritance, nonetheless, is an act of disposition in itself. In other words, the disinheritance results in the disposition of the property of the testator in favor of those who would succeed in the disinherited heir.

Whether notarial or holographic, a will must be probated before it can be given effect

Whether notarial or holographic, the will must be probated before it can be given effect. “Probate” simply means that the will must be filed with and approved by the proper court. If the will has not been probated, (1) ownership of real or personal properties mentioned in the will cannot be transferred to the heirs, and (2) any disinheritance cannot be given effect.

Issues to be resolved in the probate of a holographic will

In a petition to admit a holographic will to probate, the only issues to be resolved by the court are:

(1) whether the instrument submitted is, indeed, the decedent’s last will and testament;

(2) whether said will was executed in accordance with the formalities prescribed by law;

(3) whether the decedent had the necessary testamentary capacity at the time the will was executed; and,

(4) whether the execution of the will and its signing were the voluntary acts of the decedents.

As a rule, courts in probate proceedings are limited to pass only upon the extrinsic validity of the will sought to be probated. However, in exceptional circumstances, courts are not powerless to do what the situation constrains them to do, and pass upon certain provisions of the will. (Ajero v. Court of Appeals, G.R. No. 106720, September 15, 1994, 236 SCRA 488).

Heirs and inheritance (Part 12): How to disinherit your spouse

Summary / Definition of terms 1. “Testate or testamentary succession” refers to situations where the person dies leaving a last will. 2. “Legal or intestate succession” refers to situations where the person died without a last will. 3. “Decedent”: the person who dies and whose property is to be divided 4. “Testator”: the person who dies leaving a last will 5. A “notarial will” is prepared and notarized by a notary-public; besides the testator, three attestation witnesses must sign the will. 6. A “holographic will” is completely written, signed, and dated by the person making the will. 7. Article 918 of the New Civil Code states the requisites of a valid disinheritance. 8. Article 921 of the New Civil Code states the grounds for disinheriting a spouse. 9. The law is strict in the matter of disinheritance. If the requisites are not complied with, the disinheritance can be set aside. 10. Whether notarial or holographic, the will must be probated before it can be given effect. “Probate” simply means that the will must be filed with and approved by the proper court. If the will has not been probated, ownership of real or personal properties mentioned in the will cannot be transferred to the heirs, and any disinheritance cannot be given effect.

Spouses no longer have the right to inherit from one another after their marriage is annulled (for voidable marriages) or declared null and void (for void marriages).

In a legal separation under Articles 55 to 67 of the Family Code, Article 63, paragraph(4) disqualifies the offending spouse from inheriting from the innocent spouse by intestate succession (this term simply means “without a last will”). Also, provisions in favor of the offending spouse in a last will previously executed by the innocent spouse is revoked by operation of law.

Some spouses, however, are merely separated without having gone through the judicial process of annulment, declaration of nullity, or legal separation. In some cases, physical separation became necessary became of abuse. In instances of actual separation of the spouses where there are no judicial proceedings for annulment, declaration of nullity or legal separation, I have counseled people to, at the very least, file a petition for judicial separation of property as provided for by Articles 134 up to 142 of the Family Code.

Requisites and grounds for disinheriting a spouse

I have counseled some people in extreme situations to disinherit their spouses. I have told them that the law is very strict in the matter of disinheritance. If the requisites are not complied with, the disinheritance can be set aside. You must seek the help of a lawyer-notary public who is well-versed in the requisites of the New Civil Code of the Philippines.

The requisites of valid disinheritance under Art. 918 of the New Civil Code are:

1. It must be done in a valid will;

2. It must be express;

3. There must be a true cause;

4. The cause must be existing;

5. It must be total and complete;

6. The cause must be stated in the will;

7. The heir disinherited must be identified;

8.The will must not have been revoked.

The grounds for disinheriting a spouse under Art. 921 of the New Civil Code are:

1. When the spouse has been convicted of an attempt against the life of the testator, his or her descendants or ascendants;

2. When the spouse has accused the testator of a crime punishable by imprisonment of six years or more, and the accusation is false;

3. When the spouse, by fraud, violence, intimidation or undue influence causes the testator to make a will or to change it;

4. When the spouse has given cause for legal separation;

5. When the spouse has given grounds for loss of parental authority;

6. Unjustifiable refusal to support the children or the other spouse.

Two kinds of will: notarial and holographic

Under the New Civil Code of the Philippines, there are two kinds of wills: (1) notarial will, and (2) holographic will. As the name denotes, a “notarial will” is prepared and notarized by a notary-public. On the other hand, a “holographic will” is completely written, signed and dated by the person making the will (called the “testator”).

Disinheritance through a “Kasulatan ng Pag-Aalis ng Mana”

For more information about holographic wills, please read the Supreme Court decision in Dy Yieng Sangio vs. Reyes G.R. Nos. 140371-72 November 27, 2006. In this case, the testator executed a document entitled “Kasulatan ng Pag-Aalis ng Mana” where he disinherited his oldest child. The Supreme Court ruled:

The document, although it may initially come across as a mere disinheritance instrument, conforms to the formalities of a holographic will prescribed by law. It is written, dated and signed by the hand of the testator himself. An intent to dispose mortis causa (upon death) can be clearly deduced from the terms of the instrument, and while it does not make an affirmative disposition of the latter’s property, the disinheritance, nonetheless, is an act of disposition in itself. In other words, the disinheritance results in the disposition of the property of the testator in favor of those who would succeed in the disinherited heir.

Whether notarial or holographic, a will must be probated before it can be given effect

Whether notarial or holographic, the will must be probated before it can be given effect. “Probate” simply means that the will must be filed with and approved by the proper court. If the will has not been probated, (1) ownership of real or personal properties mentioned in the will cannot be transferred to the heirs, and (2) any disinheritance cannot be given effect.

Issues to be resolved in the probate of a holographic will

In a petition to admit a holographic will to probate, the only issues to be resolved by the court are:

(1) whether the instrument submitted is, indeed, the decedent’s last will and testament;

(2) whether the will was executed in accordance with the formalities prescribed by law;

(3) whether the decedent had the necessary testamentary capacity at the time the will was executed; and,

(4) whether the execution of the will and its signing were the voluntary acts of the decedent.

As a general rule, courts in probate proceedings are limited to pass only upon the extrinsic validity of the will sought to be probated. But, in exceptional circumstances, courts are not powerless to do what the situation constrains them to do, and pass upon certain provisions of the will. (Ajero v. Court of Appeals, G.R. No. 106720, September 15, 1994, 236 SCRA 488).

Protecting our families and churches from Internet pornography; court decisions on pornography and obscenity

Pornography in its various forms (magazines, videos, films, online, etc) is a 12 to 13 billion dollar industry that’s wreaking havoc on families and churches. And yet, according to Kerby Anderson’s article “The Pornography Plague” in www.probe.org, “Christians are often ignorant of its impact and apathetic about the need to control this menace.”

Children are the target of online pornographers. According to a 2002 report by the prestigious London School of Economics, “9 out of ten children aged between 8 and 16 years have viewed pornography on the Internet. In most cases, sites were accessed unintentionally when a child used a seemingly innocent sounding word to search for information or pictures.”

Please surf to my Salt and Light blog for the complete article on how to protect our families and churches from Internet pornography.

US Supreme Court rulings on obscenity and pornography

The provisions of the Philippines’ 1987 Constitution on freedom of the press, speech and religion are derived from the United States Constitution. Thus, our Supreme Court in deciding cases on these issues usually looks for guidance and authority at decisions made by the United States Supreme Court. Our Supreme Court’s landmark ruling in Estrada vs. Escritor on freedom of religion, for example, is replete with citations from US decisions.

I think it was US Supreme Court Justice Felix Frankfurter who said, “I can’t define what obscenity is but I will know it when I see it.” The US Supreme Court has defined and clarified what "obscenity" is in several rulings:

1. Roth v. United States, (1965): Obscenity was not protected by the First Amendment. Federal, state, and local laws apply to the sale, display, distribution, and broadcast of pornography. Pornographic material, therefore, can be prohibited if it meets the legal definition of obscenity.

2. Miller v. California, 1973: A legal definition of obscenity must meet the three part test: [1] If it appeals to the prurient interest; [2] is patently offensive, and [3] lacks serious value (artistically, etc.) then the material is considered obscene and is illegal.

3. Paris Adult Theatre v. Slaton, 1973: Material legally defined as obscene is not accorded the same protection as free speech in the First Amendment. Even if obscene films are shown only to "consenting adults," this did not grant them immunity from the law.

4. New York v. Ferber, 1982: Child pornography was not protected under the First Amendment even if it was not legally defined as obscene under their three- part test. Since children cannot legally consent to sexual relations, child pornography constitutes sexual abuse.

In 1984 the US Congress passed the Child Protection Act which provided tougher restrictions on child pornography. In the Philippines, we have RA 7610 or the “Special Protection of Children Against Abuse, Exploitation and Discrimination Act.” With regards pornography and obscenity, Article V of RA 7610 states:

Sec. 9. Obscene Publications and Indecent Shows. - Any person who shall hire, employ, use, persuade, induce or coerce a child to perform in obscene exhibitions and indecent shows, whether live or in video, or model in obscene publications or pornographic materials or to sell or distribute the said materials shall suffer the penalty of prision mayor in its medium period.

If the child used as a performer, subject or seller/distributor is below twelve (12) years of age, the penalty shall be imposed in its maximum period.

Any ascendant, guardian, or person entrusted in any capacity with the care of a child who shall cause and/or allow such child to be employed or to participate in an obscene play, scene, act, movie or show or in any other acts covered by this section shall suffer the penalty of prision mayor in its medium period.

The penalty of prision mayor (medium period) is from 8 years and one day to ten years, while the maximum period is ten years and one day up to twelve years.

Family Code of the Philippines: Property relations between live-in partners

Articles 147 and 148 of the Family Code of the Philippines are the governing laws on property relations between a man and a woman in a live-in relationship. (According to a DSWD report , 40% of couples in CALABARZON are merely living in.)

Article 147 states:

When a man and a woman who are capacitated to marry each other, live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, their wages and salaries shall be owned by them in equal shares and the property acquired by both of them through their work or industry shall be governed by the rules on co-ownership.

In the absence of proof to the contrary, properties acquired while they lived together shall be presumed to have been obtained by their joint efforts, work or industry, and shall be owned by them in equal shares. For purposes of this Article, a party who did not participate in the acquisition by the other party of any property shall be deemed to have contributed jointly in the acquisition thereof if the former's efforts consisted in the care and maintenance of the family and of the household.

Neither party can encumber or dispose by acts inter vivos of his or her share in the property acquired during cohabitation and owned in common, without the consent of the other, until after the termination of their cohabitation.

When only one of the parties to a void marriage is in good faith, the share of the party in bad faith in the co-ownership shall be forfeited in favor of their common children. In case of default of or waiver by any or all of the common children or their descendants, each vacant share shall belong to the respective surviving descendants. In the absence of descendants, such share shall belong to the innocent party. In all cases, the forfeiture shall take place upon termination of the cohabitation.

Article 147 of the Family Code applies when a man and woman can get legally married but for one reason or another, have not done so

Article 147 applies to unions of parties who are legally capacitated and not barred by any impediment to contract marriage, but whose marriage is nonetheless void. Article 147 creates a co-ownership with respect to the properties they acquire during their cohabitation. Even if one of the parties did not work or contribute in the acquisition of property, the care and maintenance of the family household is considered as a contribution.

The Supreme Court held in Valdes vs. Regional Trial Court, Br. 102, Quezon City:

This peculiar kind of co-ownership applies when a man and a woman, suffering no legal impediment to marry each other, so exclusively live together as husband and wife under a void marriage or without the benefit of marriage. The term “capacitated” in the provision (in the first paragraph of the law) refers to the legal capacity of a party to contract marriage, i.e., any “male or female of the age of eighteen years or upwards not under any of the impediments mentioned in Article 37 and 38” of the Code. (Emphasis by boldfacing supplied)

Under this property regime, property acquired by both spouses through their work and industry shall be governed by the rules on equal co-ownership. Any property acquired during the union is prima facie presumed to have been obtained through their joint efforts. A party who did not participate in the acquisition of the property shall still be considered as having contributed thereto jointly if said party’s “efforts consisted in the care and maintenance of the family household.”

Requisites for Article 147 to apply

Thus, for Article 147 to operate, the man and the woman:

• must be capacitated to marry each other;
• live exclusively with each other as husband and wife; and
• their union is without the benefit of marriage or their marriage is void.

Article 148 of the Family Code applies to situations where the parties are not legally capacitated to marry each other

Article 148 applies to bigamous marriages, adulterous relationships, relationships in a state of concubinage, relationships where both man and woman are married to other persons, and multiple alliances of the same married man. Under this regime, “only the properties acquired by both of the parties through their actual joint contribution of money, property, or industry shall be owned by them in common in proportion to their respective contributions ...” Proof of actual contribution is required, unlike in situations covered by Article 147. In the absence of proof of extent of the parties’ respective contribution, their share are presumed to be equal.

Under Article 148, the properties acquired by the parties through their actual joint contribution belong to the co-ownership. Wages and salaries earned by each party belong to him or her exclusively. Then too, contributions in the form of care of the home, children and household, or spiritual or moral inspiration, are excluded in this regime.

In the cases of Agapay v. Palang, and Tumlos v. Fernandez, which involved the issue of co-ownership of properties acquired by the parties to a bigamous marriage and an adulterous relationship, respectively, the Supreme Court ruled that proof of actual contribution in the acquisition of the property is essential. The claim of co-ownership of the petitioners who were parties to the bigamous and adulterous union is without basis because they failed to substantiate their allegation that they contributed money in the purchase of the disputed properties.

Also in Adriano v. Court of Appeals, the Court ruled that even if the controverted property was titled in the name of the parties to an adulterous relationship, it is not sufficient proof of co-ownership without evidence of actual contribution in the acquisition of the property.

The case of Saguid vs. Court of Appeals, G.R. No. 150611, June 10, 2003 illustrates how the Supreme Court applied Article 148:

Seventeen-year old Gina S. Rey was married, but separated de facto from her husband, when she met petitioner Jacinto Saguid in Marinduque, sometime in July 1987. After a brief courtship, the two decided to cohabit as husband and wife in a house built on a lot owned by Jacinto’s father. Their cohabitation was not blessed with any children. Jacinto made a living as the patron of their fishing vessel “Saguid Brothers.” Gina, on the other hand, worked as a fish dealer, but decided to work as an entertainer in Japan from 1992 to 1994 when her relationship with Jacinto’s relatives turned sour. Her periodic absence, however, did not ebb away the conflict with petitioner’s relatives. In 1996, the couple decided to separate and end their 9-year cohabitation.

On January 9, 1997, private respondent filed a complaint for Partition and Recovery of Personal Property with Receivership against the petitioner with the Regional Trial Court of Boac, Marinduque. She alleged that from her salary of $1,500.00 a month as entertainer in Japan, she was able to contribute P70,000.00 in the completion of their unfinished house. Also, from her own earnings as an entertainer and fish dealer, she was able to acquire and accumulate appliances, pieces of furniture and household effects, with a total value of P111,375.00. She prayed that she be declared the sole owner of these personal properties and that the amount of P70,000.00, representing her contribution to the construction of their house, be reimbursed to her.

Private respondent testified that she deposited part of her earnings in her savings account with First Allied Development Bank. Her Pass Book shows that as of May 23, 1995, she had a balance of P21,046.08. She further stated that she had a total of P35,465.00 share in the joint account deposit which she and the petitioner maintained with the same bank. Gina declared that said deposits were spent for the purchase of construction materials, appliances and other personal properties.

In his answer to the complaint, petitioner claimed that the expenses for the construction of their house were defrayed solely from his income as a captain of their fishing vessel. He averred that private respondent’s meager income as fish dealer rendered her unable to contribute in the construction of said house. Besides, selling fish was a mere pastime to her; as such, she was contented with the small quantity of fish allotted to her from his fishing trips. Petitioner further contended that Gina did not work continuously in Japan from 1992 to 1994, but only for a 6-month duration each year. When their house was repaired and improved sometime in 1995-1996, private respondent did not share in the expenses because her earnings as entertainer were spent on the daily needs and business of her parents. From his income in the fishing business, he claimed to have saved a total of P130,000.00, P75,000.00 of which was placed in a joint account deposit with private respondent. This savings, according to petitioner was spent in purchasing the disputed personal properties.

It is not disputed that Gina and Jacinto were not capacitated to marry each other because the former was validly married to another man at the time of her cohabitation with the latter. Their property regime therefore is governed by Article 148 of the Family Code, which applies to bigamous marriages, adulterous relationships, relationships in a state of concubinage, relationships where both man and woman are married to other persons, and multiple alliances of the same married man. Under this regime, “only the properties acquired by both of the parties through their actual joint contribution of money, property, or industry shall be owned by them in common in proportion to their respective contributions ... Proof of actual contribution is required.

In the case at bar, although the adulterous cohabitation of the parties commenced in 1987, which is before the date of the effectivity of the Family Code on August 3, 1998, Article 148 thereof applies because this provision was intended precisely to fill up the hiatus in Article 144 of the Civil Code. Before Article 148 of the Family Code was enacted, there was no provision governing property relations of couples living in a state of adultery or concubinage. Hence, even if the cohabitation or the acquisition of the property occurred before the Family Code took effect, Article 148 governs.

As in other civil cases, the burden of proof rests upon the party who, as determined by the pleadings or the nature of the case, asserts an affirmative issue. Contentions must be proved by competent evidence and reliance must be had on the strength of the party’s own evidence and not upon the weakness of the opponent’s defense. This applies with more vigor where, as in the instant case, the plaintiff was allowed to present evidence ex parte. The plaintiff is not automatically entitled to the relief prayed for. The law gives the defendant some measure of protection as the plaintiff must still prove the allegations in the complaint. Favorable relief can be granted only after the court is convinced that the facts proven by the plaintiff warrant such relief. Indeed, the party alleging a fact has the burden of proving it and a mere allegation is not evidence.

In the case at bar, the controversy centers on the house and personal properties of the parties. Private respondent alleged in her complaint that she contributed P70,000.00 for the completion of their house. However, nowhere in her testimony did she specify the extent of her contribution. What appears in the record are receipts in her name for the purchase of construction materials on November 17, 1995 and December 23, 1995, in the total amount of P11,413.00.

On the other hand, both parties claim that the money used to purchase the disputed personal properties came partly from their joint account with First Allied Development Bank. While there is no question that both parties contributed in their joint account deposit, there is, however, no sufficient proof of the exact amount of their respective shares therein. Pursuant to Article 148 of the Family Code, in the absence of proof of extent of the parties’ respective contribution, their share shall be presumed to be equal. Here, the disputed personal properties were valued at P111,375.00, the existence and value of which were not questioned by the petitioner. Hence, their share therein is equivalent to one-half, i.e., P55,687.50 each.

Procedures in RA 8552 domestic adoption and RA 8043 inter-country adoption; misinterpretation of RA 9523

Index of topics discussed in this post: Update as of March 2, 2019: Republic Act No. 11222 “Simulated Birth Rectification Act” Infertility and adoption Philippine laws on adoption Difference between adoption and simulation of birth Steps and court procedures in domestic adoption Why should an unwed mother adopt her own child? What if the unwed mother gets married subsequently to the biological father? Is the consent of the father of an illegitimate child required in adoption? Joint adoption by husband and wife is mandatory Is the adoptee’s right to inherit from both the adoptive and biological parents under the Family Code no longer true under RA 8552? Rescission (revocation) of adoption by adoptive parents no longer allowed under RA 8552 What about adoption by a wife and husband (one a former Filipino citizen and the other a natural-born citizen of another country)? Modified procedure for relative adoption cases under RA 8043 Misinterpretation and misunderstanding of RA 9523

(Note: Click the graphic to download a free PDF newsletter on this topic. This PDF is for your personal, non-commercial use only; you must not upload it to any website, blog, file-sharing platform, or the cloud.)

Infertility and adoption

Posted below are links to several articles by Sandra Glahn on the issues of infertility and adoption. Sandra knows from personal experience how difficult infertility can be; she endured a decade of infertility treatment that included multiple pregnancy losses, three failed adoptions, and an ectopic pregnancy. She quotes Alice Domar, Ph.D., director of the Mind/Body Center for Women’s Health in Beth Israel Deaconess Medical Center at Harvard Medical School: “The depression and anxiety experienced by infertile women are equivalent to that in women suffering from a terminal illness.”

• Positive Adoption Language
• Infertility: Myths and Facts
• A Heart's Desire: Encouragement for Couples Facing Infertility
• Infertility Tries Patients' Patience
• Facing the No-Baby Blues

Philippine laws on adoption

The Philippines has two laws on adoption, namely, (1) Republic Act 8552 Domestic Adoption Act of 1998; and (2) Republic Act 8043 Inter-Country Adoption Act of 1995. Portions of both laws have been amended by RA 9523 as I will discuss below.

RA 8552 amended Articles 183 up to 193 of the Family Code of the Philippines (FC) and is the governing law for Filipino citizens adopting other Filipinos (whether relatives or strangers), with some exceptions. Under Article 192 of the FC, the adopting couple may, under certain circumstances, ask for judicial rescission of the adoption. Rescission of adoption is no longer allowed under RA 8552.

RA 8043, on the other hand, governs the adoption of Filipinos by foreigners and is implemented by the Inter-Country Adoption Board. For more information on inter-country adoption, please surf to the websites of the ICAB and the Filipino Adoptees Network.

RA 8552 (and not RA 8043) applies when a foreigner who is married to a Filipino citizen seeks to adopt jointly with his/her spouse a relative within the fourth degree of consanguinity or affinity of the Filipino spouse.

Difference between adoption and simulation of birth

Update as of March 2, 2019: Republic Act No. 11222 “Simulated Birth Rectification Act” became effective on February 21, 2019. The law basically provides for: 1. rectification of the falsified birth records, without any liability (whether criminal, civil, or administrative) for the persons responsible for the falsification; 2. administrative, rather than judicial, proceedings for the adoption of the child whose birth records were falsified. For more information, please surf to: “Simulated Birth Act or Republic Act No. 11222: The Twin Remedy of Adoption and Rectification” “Primer on Simulated Birth Rectification Act, Republic Act No. 11222”

Adoption is a legal process while simulation of birth is an illegal practice resorted to by a lot of Filipinos.

Adoption is the legal process by which a child becomes the legitimate child of the adopting person or persons.

Simulation of birth, on the other hand, occurs when a childless couple, for example, comes into possession of a baby or child, given to them by a midwife, an unwed mother, or a relative. This couple then applies for a birth certificate, making it appear that the baby or child is their biological offspring.

Under RA 8552, simulation of birth is a criminal offense punishable by eight years imprisonment and a fine of fifty thousand pesos.

Steps and court procedures in domestic adoption

The Supreme Court has issued guidelines in petitions for adoptions under RA 8552 and RA 8043. Basically, a petition for domestic adoption under RA 8552 will go through these steps:

1. A lawyer prepares the petition for the person or persons wanting to adopt. The petition includes documents like birth certificates, marriage certificate, proof of financial capacity (like ITR, bank deposit, etc), clearances (barangay, police, NBI, fiscal, court), and others as proof of good moral character, good health, etc.

2. Upon payment of the filing or docket fee, the petition is raffled to a Family Court (of the city nearest the place where the petitioner resides). If the petition is sufficient in form and substance, the court issues an order, usually within a month after the filing of the petition, setting the case for initial hearing and ordering the court social worker to conduct a case study and home visit.

3. The court order is published in a newspaper of general circulation once a week for three weeks. The newspaper is chosen by raffle conducted by the Office of the Clerk of Court, in compliance with a Supreme Court circular. If a small time newspaper wins in the raffle, the total cost for the publication could be as low as Php 7,000. But if a big time newspaper like the Bulletin or the Inquirer wins the raffle, the total cost could be as high as Php 50,000.

4. Before the initial hearing, the social worker conducts a case study and home visit. The social worker submits his investigation report and recommendations to the court before the initial hearing.

5. On the date of the initial hearing, the petitioner and the prospective adoptee must be present. The lawyer presents what are known as the jurisdictional facts (petition, proof of publication in newspaper, notice to the Office of the Solicitor General, etc).

6. If there is no opposition to the petition for adoption by any party, then the lawyer asks the court permission for an ex-parte presentation of evidence, done before only the court stenographer and the court appointed commissioner (the branch clerk of court). The court however can require presentation of evidence in open court. All in all, the case could take up to about a year to finish.

7. If the court decision is favorable and there is no appeal by any party, then the court issues a Certificate of Finality. The lawyer then coordinates with the Local Civil Registrar (of the town or city where the court is located, and the adoptee’s birthplace) and the National Statistics Office for the issuance of a new birth certificate bearing the petitioner’s surname.

Why should an unwed mother adopt her own child?

Legally speaking, the relationship between any unwed mother and her child is illegitimate. In order to legitimize the relationship between an unwed mother and the illegitimate child, the mother must file a petition under RA 8552, our domestic adoption law.

What if an unwed mother gets married subsequently to the biological father?

The legal remedy would not be adoption under RA 8552 but legitimation under Articles 177 to 182 of the Family Code (that is, if there were no legal obstacles when the child was conceived or born).

What if an unwed mother gets married to a man (not the biological father) who wants to adopt her child?

RA 8552 provides that husband and wife must adopt jointly. In this situation, the result would be (1) the relationship between the mother and the child will become legitimate, and (2) the man will acquire parental authority over the child.

Is the consent of the father of an illegitimate child required in adoption?

Section 9, paragraph (b) of RA 8552 states that the written consent of the biological parent/s is necessary. UP College of Law professor Danilo L. Concepcion in his article “Domestic Adoption: Law and Procedure” (IBP Journal, March 2009, Vol. 34, No. 1) states that the reason why RA 8552 requires such consent is that their parental authority over child (the prospective adoptee) will be terminated. Several women have e-mailed about this situation. Either they do not know where the biological father of their illegitimate children is or the father is making things difficult for them. One woman even told me that the biological father asked her for money in exchange for his written consent.

Prof. Concepcion argues (and I agree with him) that because an illegitimate child is under the sole parental authority of the mother under Article 176 of the Family Code, then the consent of the biological father is not necessary. Prof. Concepcion states that the problem is with the wording of the law. He says that, instead of “biological parent/s,” the law should have used “legal parent/s” instead.

What can women with illegitimate children do in this kind of situation? They can petition Congress to amend RA 8552 so that the written consent of the father should not be required. Or they can file a petition for declaratory relief before a competent court asking that the term “biological parent/s” be interpreted to mean “legal parent/s.”

Joint adoption by husband and wife is mandatory

Please take note that Section 7 of RA 8552 provides that a husband and wife shall jointly adopt. This is a mandatory requirement with the following exceptions:

(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.

In case husband and wife jointly adopt, or one spouse adopts the illegitimate son/daughter of the other, joint parental authority shall be exercised by the spouses.

The mandatory requirement is in consonance with the concept of joint parental authority over the child, which is the ideal situation. 7 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.

Is the adoptee’s right to inherit from both the adoptive and biological parents under the Family Code no longer true under RA 8552?

The Family Code provisions on adoption have been superseded by RA 8552. While Article 189 of the Family Code specifically provides that the adoptee has the right to inherit from both the biological and adoptive parents, this provision does not appear in RA 8552. The law only states:

Sec. 18. Succession. — In legal and intestate succession, the adopter(s) and the adoptee shall have reciprocal rights of succession without distinction from legitimate filiation. However, if the adoptee and his/her biological parent(s) had left a will, the law on testamentary succession shall govern.

It seems therefore that the right of an adopted child to inherit from both biological and adoptive parents under the Family Code has been repealed by RA 8552. But, in law, implied repeals are frowned upon. Thus, it may be argued that Article 189 of the Family Code is still good law.

For issues regarding succession (“inheritance” in layman’s term) and adoption under RA 8552, please read “Revisiting the Philippine Laws on Adoption: Issues on Succession” from the Ateneo Law Journal. Please also read the article on domestic adoption by UP Prof. Concepcion which I mentioned above. Prof. Concepcion holds the same view I have that those provisions of the Family Code that have not been expressly repealed by RA 8552 are still applicable.

Rescission (revocation) of adoption by adoptive parents no longer allowed under RA 8552

The Family Code allowed adoptive parents to apply for judicial rescission or revocation of the decree of adoption. For the child’s best interest, however, RA 8552 no longer allows rescission by the adoptive parents. Only the adopted child can ask for the revocation of the adoption.

What if the adopted child becomes wayward morally or ungrateful, or physically threatens the adoptive parents? The legal remedy is to disinherit the child; please read my article “Disinheriting children and descendants, legitimate as well as illegitimate”.

What about adoption by spouses where one is a former Filipino citizen and the other is a natural-born citizen of another country?

The Supreme Court decided this issue in the case of Republic of the Philippines vs. Toledano G.R. No. 94147 June 8, 1994. This case was decided under the provisions of the Family Code on adoption which have been superseded by RA 8043 and RA 8552. But the point of contention in this case (mandatory joint adoption by both husband and wife under Article 185 of the Family Code) has been carried over to RA 8552, specifically, Section 7.

The facts of the Toledano case

On February 21, 1990, in a verified petition filed before the Regional Trial Court of Iba, Zambales, private respondents spouses Clouse sought to adopt the minor, Solomon Joseph Alcala, the younger brother of private respondent Evelyn A. Clouse. In an Order issued on March 12, 1990, the petition was set for hearing on April 18, 1990. The said Order was published in a newspaper of general circulation in the province of Zambales and City of Olongapo for three (3) consecutive weeks.

The principal evidence disclose that private respondent Alvin A. Clouse is a natural born citizen of the United States of America. He married Evelyn, a Filipino on June 4, 1981 at Olongapo City. On August 19, 1988, Evelyn became a naturalized citizen of the United States of America in Guam. They are physically, mentally, morally, and financially capable of adopting Solomon, a twelve (12) year old minor.

Since 1981 to 1984, then from November 2, 1989 up to the present, Solomon Joseph Alcala was and has been under the care and custody of private respondents. Solomon gave his consent to the adoption. His mother, Nery Alcala, a widow, likewise consented to the adoption due to poverty and inability to support and educate her son.

Mrs. Nila Corazon Pronda, the social worker assigned to conduct the Home and Child Study, favorably recommended the granting of the petition for adoption.

Finding that private respondents have all the qualifications and none of the disqualifications provided by law and that the adoption will redound to the best interest and welfare of the minor, respondent judge rendered a decision on June 20, 1990, disposing as follows:

WHEREFORE, the Court grants the petition for adoption filed by Spouses Alvin A. Clouse and Evelyn A. Clouse and decrees that the said minor be considered as their child by adoption. To this effect, the Court gives the minor the rights and duties as the legitimate child of the petitioners. Henceforth, he shall be known as SOLOMON ALCALA CLOUSE.

The Court dissolves parental authority bestowed upon his natural parents and vests parental authority to the herein petitioners and makes him their legal heir. Pursuant to Article 36 of P.D. 603 as amended, the decree of adoption shall be effective as of the date when the petition was filed. In accordance with Article 53 of the same decree, let this decree of adoption be recorded in the corresponding government agency, particularly the Office of the Local Civil Registrar of Merida, Leyte where the minor was born. The said office of the Local Civil Registrar is hereby directed to issue an amended certificate of live birth to the minor adopted by the petitioners.

Let copies of this decision be furnished (sic) the petitioners, DSWD, Zambales Branch, Office of the Solicitor General and the Office of the Local Civil Registrar of Merida, Leyte.

The Office of the Solicitor General appealed to the Supreme Court on a pure question of law, that is, under Article 185 of the Family Code, the Clouse couple was not qualified to adopt.

The ruling of the Supreme Court

Under Articles 184 and 185 of Executive Order (E.O.) No. 209, otherwise known as “The Family Code of the Philippines”, private respondents spouses Clouse are clearly barred from adopting Solomon Joseph Alcala.

Article 184, paragraph (3) of Executive Order No. 209 expressly enumerates the persons who are not qualified to adopt, viz.:

(3) An alien, except:

(a) A former Filipino citizen who seeks to adopt a relative by consanguinity;
(b) One who seeks to adopt the legitimate child of his or her Filipino spouse; or
(c) One who is married to a Filipino citizen and seeks to adopt jointly with his or her spouse a relative by consanguinity of the latter.Aliens not included in the foregoing exceptions may adopt Filipino children in accordance with the rules on inter-country adoption as may be provided by law.

There can be no question that private respondent Alvin A. Clouse is not qualified to adopt Solomon Joseph Alcala under any of the exceptional cases in the aforequoted provision.

In the first place, he is not a former Filipino citizen but a natural born citizen of the United States of America.

In the second place, Solomon Joseph Alcala is neither his relative by consanguinity nor the legitimate child of his spouse.

In the third place, when private respondents spouses Clouse jointly filed the petition to adopt Solomon Joseph Alcala on February 21, 1990, private respondent Evelyn A. Clouse was no longer a Filipino citizen. She lost her Filipino citizenship when she was naturalized as a citizen of the United States in 1988.

Private respondent Evelyn A. Clouse, on the other hand, may appear to qualify pursuant to paragraph 3(a) of Article 184 of E.O. 209. She was a former Filipino citizen. She sought to adopt her younger brother. Unfortunately, the petition for adoption cannot be granted in her favor alone without violating Article 185 which mandates a joint adoption by the husband and wife. It reads:

Article 185. Husband and wife must jointly adopt, except in the following cases:

(1) When one spouse seeks to adopt his own illegitimate child; or
(2) When one spouse seeks to adopt the legitimate child of the other.

Article 185 requires a joint adoption by the husband and wife, a condition that must be read along together with Article 184.

In sum, the Supreme Court ruled that the adoption must be filed jointly by husband and wife, unless they fall under the exceptions. Also, when adopting jointly, each one of them must be qualified to adopt on his own right.

Modified procedure for relative adoption cases under RA 8043 (as approved by the ICAB on August 30, 2007)

“Relative Adoption” as applies to inter-country adoption refers to the adoption of Filipino child/children by relatives residing abroad within the fourth (4th) degree of consanguity.

Former Filipinos permanently residing abroad and/or foreigners intending to undertake either local adoption (the filing and the finalization of the adoption is done in the Philippines and have the intention of bringing the adoptive child to their country of residence) or through the inter-country adoption route MUST first secure the approval of the Central Authority on Inter-country Adoption in the country of residence before filing any adoption petition. Adoption applicants from the USA must first secure their suitability and eligibility to adopt (I800A) from the USA Central Authority on Inter-Country Adoption. Canada based adoption applicants obtain such approval from the Central Authority on Inter-country Adoption of the Province or Territory of residence.

1. The Questionnaire for Relative Adoptive Applicants (ICAB Form No.2) which can be downloaded from the ICAB website shall be submitted by the prospective adoptive parents (PAPs) to the Central Authorities (CAs)/ Foreign Adoption Agencies(FAAs). The CAs/FAAs shall endorse to ICAB the completed Questionnaire for Relative Adoptive Applicants (QRAA) with the agency's assessment and recomendation on the prospective adoptive parents.

2. If the CA/FAA favorably recommends the PAPs, the ICAB social worker will then request the CA/FAA to proceed with the preparation of the PAPs’ dossier. On the other hand, based on the significant data on the child as indicated in the QRAA, the assigned ICAB Social Worker will request the DSWD - Field Office (FO) to conduct the Child Study Report with supporting documents. Periodic follow-ups will be made with the DSWD-FO. (The time frame from request to ICAB’s receipt of the report will be 3-6 months. In situations where the FO could not prepare the Child Study Report within the expected time frame in view of heavy adoption caseload, the ICAB social worker will assist in the conduct of the CSR).

3. Once the ICAB receives from the DSWD-FO the child’s dossier and the complete adoption application dossier of the PAPs from the CA or FAA, the ICAB social worker will prepare an executive summary on the case with his/her recommendation on the child’s adoptive placement for the disposition of the Board.

For more information, you can contact the ICAB at #2 Chicago St corner Ermin Garcia St. Barangay Pinagkaisahan, Cubao, Quezon City, Philippines 1111; Telephone Nos:(632)721-9781 to 82; 726-45-51;726-45-68 Loc. 807 (Regular) and 808/810 (Relative)
Fax No. (632)725-66-64; E-Mail address: adoption@icab.gov.ph; Website: www.icab.gov.ph

The contact list of ICAB counterpart organizations: Asia Pacific, Canada, Europe and USA.

Misinterpretation and misunderstanding of RA 9523

Republic Act 9523 “An Act Requiring Certification of the Department of Social Welfare and Development (DSWD) to Declare A Child Legally Available For Adoption as a Prerequisite For Adoption Proceedings” amended certain portions of RA 8552 , RA 8043, and Presidential Decree No. 603 “Child and Youth Welfare Code”.

Contrary to erroneous reports in the media and the Internet, RA 9523 did not turn the whole adoption process from a judicial proceeding under the Family Courts to an administrative proceeding under the DSWD. RA 9253 applies only to surrendered, abandoned, neglected, and dependent children who are subject to adoption.

Under RA 9523, the time period before a child is considered abandoned has been reduced to a maximum of three months from the original minimum of six months. RA 9523 made the declaration of abandonment of child “administrative in nature” which now requires just a certification signed by the DSWD secretary instead of a judicial order. Because of the new regulations, a child could be declared legally available for adoption in less than two months. Previously, it took as long as three years in court proceedings for such a declaration.

But as Section 4 of the Implementing Rules and Regulations of RA 9523 clearly states, certain adoption proceedings in court do not require a “Certification Declaring a Child Legally Available for Adoption.” These are:

[1] Adoption of an illegitimate child by any of his/her biological parent
[2] Adoption of a child by his/her step-parent
[3] Adoption of a child by a relative within the fourth degree of consanguinity or affinity

Note: You might be interested in reading "Adoption group opposes ‘Orphan’ movie", a Manila Bulletin article by Robert Requintina.

Can a man who had a sex change operation have his birth certificate entry for gender changed from “male” to female”?

The Supreme Court ruled negatively on this question in the case of “Rommel Jacinto Dantes Silverio versus Republic of the Philippines”, G.R. No. 174689, promulgated last October 22, 2007.

Justice Renato C. Corona, speaking for the Court, asked rhetorically in his ponencia, “When is a man a man and when is a woman a woman? In particular, does the law recognize the changes made by a physician using scalpel, drugs and counseling with regard to a person’s sex? May a person successfully petition for a change of name and sex appearing in the birth certificate to reflect the result of a sex reassignment surgery?”

(Note: Please read From “Jennifer ” to “Jeff ” and from female to male: correction of entries in birth certificate due to intersex condition)

The facts of the case

Rommel Jacinto Dantes Silverio (Silverio for brevity) alleged in his petition that he was born in the City of Manila to the spouses Melecio Petines Silverio and Anita Aquino Dantes on April 4, 1962. His name was registered as “Rommel Jacinto Dantes Silverio” in his certificate of live birth (birth certificate). His sex was registered as “male.”

Silverio further alleged that he is a male transsexual, that is, “anatomically male but feels, thinks and acts as a female” and that he had always identified himself with girls since childhood. Feeling trapped in a man’s body, he consulted several doctors in the United States. He underwent psychological examination, hormone treatment and breast augmentation. His attempts to transform himself to a “woman” culminated on January 27, 2001 when he underwent sex reassignment surgery in Bangkok, Thailand. He was thereafter examined by Dr. Marcelino Reysio-Cruz, Jr., a plastic and reconstruction surgeon in the Philippines, who issued a medical certificate attesting that he (Silverio) had in fact undergone the procedure. During trial, Silverio testified for himself. He also presented Dr. Reysio-Cruz, Jr. and his American fiancé, Richard P. Edel, as witnesses.

The favorable decision of the Manila Regional Trial Court

On June 4, 2003, the Manila RTC through presiding Judge Felixberto T. Olalia rendered a decision in favor of Silverio, that is, changing his first name from "Rommel" to "Mely" and his gender from "male" to "female". The trial court stated,

Firstly, the court is of the opinion that granting the petition would be more in consonance with the principles of justice and equity. With his sexual [re-assignment], petitioner, who has always felt, thought and acted like a woman, now possesses the physique of a female. Petitioner’s misfortune to be trapped in a man’s body is not his own doing and should not be in any way taken against him.

Likewise, the court believes that no harm, injury [or] prejudice will be caused to anybody or the community in granting the petition. On the contrary, granting the petition would bring the much-awaited happiness on the part of the petitioner and her fiancé and the realization of their dreams.

On August 18, 2003, the Republic of the Philippines, through the Office of the Solicitor General, filed a petition for certiorari in the Court of Appeals. It alleged that there is no law allowing the change of entries in the birth certificate by reason of sex alteration.

Manila RTC decision overturned by the Court of Appeals

On February 23, 2006, the Court of Appeals rendered a decision in favor of the Republic. It ruled that the trial court’s decision lacked legal basis. There is no law allowing the change of either name or sex in the certificate of birth on the ground of sex reassignment through surgery. Thus, the Court of Appeals granted the Republic’s petition, set aside the decision of the trial court and ordered the dismissal of SP Case No. 02-105207. Silverio moved for reconsideration but it was denied. He subsequently filed a petition with the Supreme Court questioning the decision of the Court of Appeals.

Reasons why the Supreme Court denied petition for change from “male” to “female”

The Supreme Court denied Silverio’s petition on the following grounds: [1] A person’s first name cannot be changed on the ground of sex reassignment; [2] No law allows the change of entry in the birth certificate as to sex on the ground of sex reassignment; and [3] Neither may entries in the birth certificate as to first name or sex be changed on the ground of equity.

The pertinent portions of the Supreme Court decision are posted below:

1. The petition in the trial court in so far as it prayed for the change of petitioner’s first name was not within that court’s primary jurisdiction as the petition should have been filed with the local civil registrar concerned, assuming it could be legally done. It was an improper remedy because the proper remedy was administrative, that is, that provided under RA 9048. It was also filed in the wrong venue as the proper venue was in the Office of the Civil Registrar of Manila where his birth certificate is kept. More importantly, it had no merit since the use of his true and official name does not prejudice him at all. For all these reasons, the Court of Appeals correctly dismissed petitioner’s petition in so far as the change of his first name was concerned.

2. While petitioner may have succeeded in altering his body and appearance through the intervention of modern surgery, no law authorizes the change of entry as to sex in the civil registry for that reason. There is no special law in the country governing sex reassignment and its effect. This is fatal to petitioner’s cause.

3. In our system of government, it is for the legislature, should it choose to do so, to determine what guidelines should govern the recognition of the effects of sex reassignment. The need for legislative guidelines becomes particularly important in this case where the claims asserted are statute-based.

4. The changes sought by petitioner will have serious and wide-ranging legal and public policy consequences. First, even the trial court itself found that the petition was but petitioner’s first step towards his eventual marriage to his male fiancé. However, marriage, one of the most sacred social institutions, is a special contract of permanent union between a man and a woman. One of its essential requisites is the legal capacity of the contracting parties who must be a male and a female. To grant the changes sought by petitioner will substantially reconfigure and greatly alter the laws on marriage and family relations. It will allow the union of a man with another man who has undergone sex reassignment (a male-to-female post-operative transsexual).

Second, there are various laws which apply particularly to women such as the provisions of the Labor Code on employment of women, certain felonies under the Revised Penal Code and the presumption of survivorship in case of calamities under Rule 131 of the Rules of Court, among others. These laws underscore the public policy in relation to women which could be substantially affected if petitioner’s petition were to be granted.

(Note: Please read From “Jennifer ” to “Jeff ” and from female to male: correction of entries in birth certificate due to intersex condition)

P.S. If you know someone struggling with homosexuality, please ask him to surf to Living Hope Ministries. Here in the Philippines, he can communicate with Bagong Pag-asa, an ex-gay change ministry founded by Frank Worthen. Its office is located at Burgundy Corporate Tower in Buendia, Makati. I don’t know if Bagong Pag-asa’s cell phone numbers are still current but try 0927-578-8373 or 0921-295-2135.

I have worked with a pastor in a depressed community here in Metro Manila, and he told me of the very serious problem of the sexual abuse of grade school children by their own fathers. Two of my former students in high school became homosexuals when they were sexually abused at a very young age. I wanted to learn how to help people in this kind of situation, and so I invited Frank Worthen three years ago to give a seminar on the causes of homosexuality for the faculty and students of Asia Baptist Bible College, Sta. Mesa, Manila. His books on this topic are available at PCBS, OMF Lit, and National Bookstore.

Legal definition of “death” in the Philippines

The medical community, here and abroad, has used several criteria by which to determine whether a person is dead or alive. These are:

(1) Heart-lung death: the irreversible cessation of spontaneous respiration and circulation

(2) Whole-brain death: the irreversible cessation of all functions of the entire brain, including the brain stem, even if the heart and digestive systems are still functioning

(3) Higher-brain death: the irreversible cessation of all cognitive functions such as personality, consciousness, uniqueness, memory, judgment, reason, enjoyment, worry, etc.

How does Philippine law define “death”? Republic Act 7170 or the “Organ Donation Act of 1991” in Section 2, paragraph (j), defines death this way:

j) “Death” - the irreversible cessation of circulatory and respiratory functions or the irreversible cessation of all functions of the entire brain, including the brain stem. A person shall be medically and legally dead if either:

(1) In the opinion of the attending physician, based on the acceptable standards of medical practice, there is an absence of national respiratory and cardiac functions and, attempts at resuscitation would not be successful in restoring those functions. In this case, death shall be deemed to have occurred at the time those functions ceased; or

(2) In the opinion of the consulting physician, concurred in by the attending physician, that on the basis of acceptable standards of medical practice, there is an irreversible cessation of all brain functions, and considering the absence of such functions, further attempts at resuscitation or continued supportive maintenance would not be successful in restoring such natural functions. In this case, death shall be deemed to have occurred at the time when these conditions first appeared.

The death of the person shall be determined in accordance with the acceptable medical practice and shall be diagnosed separately by the attending physician and another consulting physician, both of whom must be appropriately qualified and suitable experienced in the care of such patients. The death shall be recorded in the patient’s medical record.

For a related article on this topic, please surf to my Salt and Light weblog at www.-salt-and-light-.blogspot.com.

Curfew for minors now illegal under RA 9344 “Juvenile Justice and Welfare Act of 2006”

Update as of November 3, 2017: SC okays curfew for QC minors, but not in Manila and Navotas (Business Mirror) After a thorough evaluation of the provisions of the ordinances, the Court found that only the Quezon City ordinance met the said requirement as the Manila and Navotas ordinances were not narrowly drawn in that their exceptions were inadequate and run the risk of overly restricting the minors’ fundamental freedoms. “To be fair, both ordinances protect the rights to education, to gainful employment and to travel at night from school or work,” the Court said. “However, even with those safeguards, the Navotas Ordinance and, to a greater extent, the Manila Ordinance still do not account for the reasonable exercise of the minors’ rights of association, free exercise of religion, rights to peaceably assemble and of free expression, among others.” The Court said the exceptions under the Manila ordinance were too limited and, thus, unduly trample upon protected liberties. It likewise observed that, while the Navotas ordinance was apparently more protective of constitutional rights than the Manila ordinance, it still provided insufficient safeguards in that it hindered minors from engaging in legitimate nonschool or nonchurch activities in the streets; it effectively prohibited minors from attending traditional religious activities (such as simbang gabi or dawn masses) at night without accompanying adults; and it did not accommodate avenues for minors to engage in political rallies or attend city council meetings to voice out their concerns in line with their right to peaceably assemble and to free expression. In addition, the Court ruled that the penal provisions of the Manila Ordinance, which impose reprimand and fines/imprisonment on minors are in conflict with Section 57-A of Republic Act 9344 (Juvenile Justice and Welfare Act of 2006), as amended, which provides that no penalty shall be imposed on children for violations of juvenile status offenses. Read also: SC upholds QC curfew for minors, strikes down curfew in Manila, Navotas (ABS-CBN) SC okays curfew for minors in QC, but not in Manila, Navotas (Interaksyon)

It has been a year since Republic Act 9344 or the “Juvenile Justice and Welfare Act of 2006” was signed into law by President Gloria Macapagal-Arroyo, and its provisions have only just started to make ripples in the public consciousness.

Controversial provisions of RA 9344

Some provisions of RA 9344 have become controversial, most especially the provision on criminal exemption of persons below fifteen years of age. Anyone who has taught in public high schools will tell you how naive and shortsighted this particular provision is.

Several weeks ago, a high school kid from Laguna was beaten to death by a schoolmate, but because that schoolmate is below 15, the police had no choice but to release him. In fairness to the sponsors of this law (Sen Kiko Pangilinan and the UNICEF), RA 9344 provides for what are known as "diversion" and intervention" programs to be implemented by the DSWD.

Please read Dan Mariano’s article “Problems juvenile justice law failed to anticipate” which discusses a potential and very possible scenario whereby criminal syndicates could purposely use minors for their illegal activities. “First minors are exploited and turned into criminal activities because of their poverty. Now, they will be exploited precisely because of their minority and their exemption from criminal prosecution.”

Curfew ordinances against minors is a status offense prohibited by RA 9344

Numerous barangays, towns and cities have passed ordinances imposing curfew for minors. Under Section 57 of RA 9344, curfew ordinances against minors are classified as “status offenses” and are therefore illegal. The section states:

Any conduct not considered as an offense or not penalized if committed by an adult shall not be considered an offense and shall not be punished if committed by a child. Below are some of the essential provisions of the said law.

Sec. 4, paragraph (r) of RA 9344 includes curfew violations under the term “status offense”.

Other essential provisions of RA 9344

Section 6.- Minimum Age of Criminal Responsibility

A child fifteen (15) years of age or under at the time of the commission of the offense shall be exempt from criminal liability. However, the child shall be subjected to an intervention program pursuant to Section 20 of this Act.

A child above fifteen (15) years but below eighteen (18) years of age shall likewise be exempt from criminal liability and be subjected to an intervention program, unless he/she acted with discernment, in which case, such child shall be subjected to the appropriate proceedings in accordance with this Act.

The exemption from criminal liability herein established does not include exemption from civil liability, which shall be enforced in accordance with existing laws.

Section 20.- Children Below the Age of Criminal Responsibility

If it has been determined that the child taken into custody is fifteen (15) years old or below, the authority which shall have an initial contact with the child has the duty to immediately release the child to the custody of his/her parents or guardian, or in the absence thereof, the child’s nearest relative. Said authority shall give notice to the local social welfare and development officer who will determine the appropriate programs in consultation with the child and the person having custody over the child. If the parents, guardians or nearest relatives cannot be located, or if they refuse to take custody, the child may be released to any of the following: a duly registered nongovernmental or religious organization, a barangay official or a member of the Barangay Council for the Protection of Children (BCPC), a local social welfare and development officer, or when and where appropriate, the DSWD. If the child referred to herein has been found by the Local Social Welfare and development Office to be abandoned, neglected or abused by his parents, or in the event that the parents will not comply with the prevention program, the proper petition for involuntary commitment shall be filed by the DSWD or the Local Social Welfare and Development Office pursuant to Presidential Decree No. 603, otherwise known as “The Child and Youth Welfare Code.”

Section 58. - Offenses Not Applicable to Children

Persons below eighteen (18) years of age shall be exempt from prosecution for the crime of vagrancy and prostitution under Section 202 of the Revised Penal Code, of mendicancy under Presidential Decree No. 1563, and sniffing of rugby under Presidential Decree No.1619, such prosecution being inconsistent with the United Nations Convention on the Rights of the Child: Provided, That said persons shall undergo appropriate counseling and treatment program.