BONOS Y OBLIGACIONES ESTRUCTURADOS

KINDS OF FILIATION (ARTS. 163, 164, 165):

(1) Natural (a) Legitimate (b) Illegitimate

(2) Legal Fiction (Adoption)

LEGITIMATE CHILDREN

WHO ARE LEGITIMATE CHILDREN (ART.164)

Those conceived or born during the marriage of parents either by natural means or by artificial insemination

Natural/Biological

[Liyao v. Liyao (2002)]: A child conceived or born during a valid marriage is presumed to belong to that marriage, regardless of the existence of extramarital relationships.

Artificial Insemination (Art. 164) Requisites to be considered legitimate: (a) Artificial insemination made on wife (b) Sperm comes from any of the following:

(1) Husband

(2) Third Person Donor

(3) Husband and third person donor

(c) In case of donor sperm, husband and wife must authorize/ratify insemination in a written instrument

(1) Executed & signed by husband and wife before the birth of the child.

(2) Recorded in the civil registry together with the birth certificate of the child.

[Tolentino]: Dual consent is required whether the semen used comes from the husband or a third person donor

WHO ARE ILLEGITIMATE CHILDREN

General rule: Those conceived and born outside of a valid marriage. [Art. 165]

Exceptions:

(1) Children of marriages void under Art. 36 (psychological incapacity).

(2) And under Art. 53 (the second marriage of a widow or widower who has not delivered to his or her children by his or her first marriage the legitime of said children). (Sempio-Dy)

De Castro v. Assidao-De Castro, (2008):

Common children born before the annulment are legitimate, and therefore entitled to support from each of the spouses.

IMPUGNING LEGITIMACY

Grounds for impugning legitimacy of a child are [Art. 166]:

(1) Physical impossibility for the husband to have sexual intercourse with his wife within the first 120 days of the 300 days which immediately preceded the child's birth due to:

(a) Physical incapacity of the husband to have sexual intercourse with his wife

(b) Husband and wife were living separately as to make sexual intercourse impossible

(c) Serious illness of the husband absolutely preventing sexual intercourse

(2) Other biological or scientific reasons, except Artificial Insemination

(3) And in case of Artificial Insemination, the written consent of either parent was vitiated through fraud, violence, mistake, intimidation, or undue influence

Macadangdang v. CA (1980):

Mere proximate separation between the spouses is not sufficient physical separation as grounds for impugning legitimacy.

Andal v. Macaraig (1951):

Serious illness of the husband which absolutely prevented him from having sexual intercourse with his wife, like if the husband was already in comatose or a

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vegetable, or sick with syphilis in the tertiary stage so that copulation was not possible. But tuberculosis, even in its most crucial stage, does not preclude copulation between the sick husband and his wife. Jao v. CA (1987):

Blood-type matching is an acceptable means of impugning legitimacy, covered by Art. 166(2), under "biological or other scientific reasons." But this is only conclusive of the fact of non-paternity.

Legitimacy with regard to the mother:

(1) Child considered legitimate although [Art. 167]: (a) Mother may have declared against its

legitimacy

(b) Mother may have been sentenced as an adulteress (also applies to wife who was raped)

(2) If the marriage is terminated and the mother contracted another marriage within 300 days after the termination of the former marriage, the rules shall govern in the absence of proof to the contrary [Art 168]:

(a) If child born before 180 days after the solemnization of the subsequent marriage – child is considered conceived during the former marriage, provided it be born within 300 days after termination of the former marriage

(b) If child born after 180 days following the celebration of the subsequent marriage – child is considered conceived during such marriage, even if it be born within 300 days after the termination of the former marriage Note: The legitimacy or illegitimacy of a child born after 300 days following the termination of the marriage – burden of proof upon whoever alleges the status. [Art. 169]

[Tolentino:] If nobody asserts the legitimacy or illegitimacy of the child described in Art. 169, the child should be considered illegitimate unless legitimacy is proved. Legitimacy cannot be presumed here since the birth was beyond the 300-day period of gestation. While it goes against the policy of law to lean in favor of legitimacy, this interpretation is better than the anomalous situation created by Art. 169, which is a child without a status.

ACTION FOR IMPUGNING LEGITIMACY [ARTS.170 AND 171]

May be brought within 1, 2, or 3 years from the knowledge of the birth, or the knowledge of registration of birth.

(1) Within 1 year  if husband or any heirs reside in the same city or municipality where the child was born or his birth was recorded.

(2) Within 2 years  if the husband or all heirs live in the Philippines but do not reside in the same city or municipality where the child's birth took place or was recorded

(3) Within 3 years  if the husband or all heirs live outside the Philippines when the child's birth took place or was recorded in the Philippines

If the birth of the child has been concealed or was unknown to the husband, the above periods shall be counted:

(1) From the discovery or knowledge of the birth of the child, or

(2) From the discovery or knowledge of its registration,

(3) Whichever is earlier.

General rule: Only the husband can impugn the legitimacy of a child. If he does not bring an action within the prescribed periods, he cannot file such action anymore thereafter, and this is also true with his heirs.

Exception: That the heirs of the husband may file the action or continue the same within the periods prescribed in Art. 170 [Art. 171]:

(a) If the husband died before the expiration of the period fixed for bringing his action

(b) If he should die after the filing of the complaint without having desisted therefrom

(c) If the child was born after the death of the husband.

Sayson v. CA (1992): Legitimacy can only be attacked directly.

PROOF OF FILIATION

Legitimate children may establish their filiation by any of the following [Art. 172]:

(1) Primary Evidence

(a) Their record of birth appearing in the civil registry.

(b) An admission of his filiation (legitimate or illegitimate) by his parent or parents in a public document or a private handwritten instrument and signed by said parent or parents

(2) Secondary Evidence

(a) Proof of open and continuous possession of status as legitimate or illegitimate child (b) Any other means stated by the rules of court

or special laws

Note: Only in the absence of primary evidence can secondary evidence be admitted

ACTION FOR CLAIMING FILIATION [ART.173]:

(a) The child can bring the action during his or her lifetime, and once commenced such action survives even after the death of the parents. The action does not prescribe as long as he lives. (b) If the child dies during minority or in a state of

insanity, such action shall be transmitted to his heirs, who shall have a period of five years within which to institute the action.

RIGHTS OF LEGITIMATE CHILDREN [ART.174]:

(a) To bear the surnames of the father and the mother, in conformity with the provisions of the Civil Code on Surnames

(b) To receive support from their parents, their ascendants, and in proper cases, their brothers and sisters, in conformity with the provisions of this Code on Support

(c) To be entitled to the legitimate and other successional rights granted to them by the Civil Code

ILLEGITIMATE CHILDREN

Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence (primary or secondary) as legitimate children. [Art. 175]

ACTION FOR CLAIMING FILIATION [ART.175]:

(a) For actions based on primary evidence, the same periods stated in Art. 173 apply.

(b) For actions based on secondary evidence, the action may only be brought during the lifetime of the alleged parent.

Mendoza v. Melia (1966):

Baptismal certificates are given probative value only for births before 1930. Birth certificates must be signed by the parents and sworn for it to be admitted as evidence.

Baluyut v. Baluyut (1990):

Unsigned birth certificates are not evidence of recognized filiation.

Acebedo v. Arquero (2003):

Baptismal certificates are only conclusive of the sacrament administered, and cannot be used as proof of filiation.

Lim v. CA (1975):

Marriage certificates cannot be used as proof of filiation.

Jison v. CA (1998):

Rule 130, Sec. 40 is limited to objects commonly known as family possessions reflective of a family's

reputation or tradition regarding pedigree like inscriptions on tombstones, monuments, or coffin plates.

Eceta v. Eceta (2004):

Signature of the father on the birth certificate is considered as an acknowledgement of paternity and mere presentation of a duly authenticated copy of such certificate will successfully establish filiations.

Heirs of Rodolfo Bañas v. Heirs of Bibiano Bañas (1985):

"Su padre [Your father]" ending in a letter is only proof of paternal solicitude and not of actual paternity. Signature on a report card under the entry of "Parent/Guardian" is likewise inconclusive of open admission.

De Jesus v. Syquia (1933):

By "open and continuous possession of the status of a legitimate child" is meant the enjoyment by the child of the position and privileges usually attached to the status of a legitimate child, like bearing the paternal surname, treatment by the parents and family of the child as legitimate, constant attendance to the child's support and education, and giving the child the reputation of being a child of his parents.

Agustin v. CA (2005):

DNA evidence can be used as proof of paternity. De Jesus v. Estate of Decedent Juan Gamboa Dizon (2001):

The due recognition of an illegitimate child in a record of birth, a will, a statement before a court of record, or in any authentic writing, is in itself a consummated act of acknowledgement of the child, and no further court action is required.

Gono-Javier vs. Court of Appeals (1994):

Mere possession of status as an illegitimate child does not make a recognized illegitimate child but is only a ground for bringing an action to compel judicial recognition by the assumed parent.

Herrera v. Alba (2005):

In assessing the probative value of DNA evidence, therefore, courts should consider, among other things, the following data:

(a) How the samples were collected, (b) How they were handled,

(c) The possibility of contamination of the samples, (d) The procedure followed in analyzing the samples, (e) Whether the proper standards and procedures were

followed in conducting the tests,

(f) The qualification of the analyst who conducted the tests.

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Estate of Rogelio Ong v. Diaz (2007):

DNA evidence can still be used even after the death of the parent.

Gotardo v. Buling (2012):

There are four significant procedural aspects of a traditional paternity action that parties have to face: a prima facie case, affirmative defenses, presumption of legitimacy, and physical resemblance between the putative father and the child. A prima facie case exists if a woman declares — supported by corroborative proof — that she had sexual relations with the putative father; at this point, the burden of evidence shifts to the putative father. Further, the two affirmative defenses available to the putative father are: (1) incapability of sexual relations with the mother due to either physical absence or impotency, or (2) that the mother had sexual relations with other men at the time of conception.

Perla v. Baring and Perla (2012):

To prove open and continuous possession of the status of an illegitimate child, there must be evidence of the manifestation of the permanent intention of the supposed father to consider the child as his, by continuous and clear manifestations of parental affection and care, which cannot be attributed to pure charity.

Meanwhile, the lack of participation of the supposed father in the preparation of a baptismal certificate renders this document incompetent to prove paternity. Baptismal certificates are per se inadmissible in evidence as proof of filiation and they cannot be admitted indirectly as circumstantial evidence to prove the same

RIGHTS OF ILLEGITIMATE CHILD [ART.176]:

(a) Use the surname and be under the parental authority of the mother

(b) However, may use the surname of their father if (1) Their filiation has been expressly recognized

by the father through the record of birth appearing in the civil register.

(2) There is an admission in a public document or private handwritten instrument made by the father.

(3) Provided, the father has the right to institute an action before the regular courts to prove non-filiation during his lifetime [RA 9255] (c) Shall be entitled to support in conformity with the

Family Code

(d) Legitime shall consist of one-half of the legitime of a legitimate child. Except for such modification, all other provisions of the Civil Code

governing successional rights shall remain in force.

LEGITIMATED CHILDREN

"Legitimated" children are illegitimate children who because of the subsequent marriage of their parents are, by legal fiction, considered legitimate.

TO BE CAPABLE OF LEGITIMATION:

(1) The child must have been conceived and born outside of wedlock; and

(2) General rule: The parents, at the time of the child's conception, were not disqualified by any impediment to marry each other (Art. 177). Exception: RA 9858 - Children born to parents who were so disqualified only because either or both of them were below eighteen (18) years of age at the time of child’s conception may be legitimated.

PROCEDURE:

(a) Legitimation shall take place by a subsequent valid marriage between the parents. The annulment of a voidable marriage shall not affect the legitimation. [Art. 178]

(b) Effects of legitimation shall retroact to the time of the child’s birth [Art. 180]

(c) Legitimation of children who died before the celebration of the marriage shall benefit their descendants [Art. 181]

GROUNDS FOR IMPUGNING LEGITIMATION:

(1) The subsequent marriage of the child's parents is void.

(2) The child allegedly legitimated is not natural. (3) The child is not really the child of the alleged

parents. (Sempio-Dy) RIGHTS:

The same as those of legitimate children [Art. 179] IMPUGNING LEGITIMATION [ART.182]

(1) May be made only by those who are prejudiced in their rights

(2) Within five years from the time their cause of action accrues

Adoption

Legitimation Adoption

Legal effect The law merely makes

legal what exists by nature

The law merely creates by fiction a relation which did not in fact exist Persons affected

Natural Children Strangers (generally) Procedure

Extrajudicial acts of

parents Always by judicial decree

Who should apply

Both parents Both parents, but with exceptions allowing only one of them to apply [RA 85520]

Effect on parent-child relationship Same status and rights

with that of a legitimate child not only in relation to the legitimizing parents but also to other relatives

Creates a relationship only between the child and the adopting parents

ADOPTION is a juridical act, which creates between two persons a relationship similar to that which results from legitimate paternity and filiation.

RA 8552 – DOMESTIC ADOPTION LAW

WHO CAN ADOPT (1) Filipino Citizens

(a) Of legal age

(b) With full civil capacity and legal rights (c) Of good moral character

(d) Has not been convicted of any crime involving moral turpitude

(e) Emotionally and psychologically capable of caring for children

(f) At least sixteen (16) years older than adoptee, except when adopter is biological parent of the adoptee or is the spouse of the adoptee’s parent

(g) In a position to support and care for his/her children in keeping with the means of the family

(2) Aliens

Same for Filipinos provided further that: (1) At least 27 years old

(2) His/her country has diplomatic relations with the Philippines

(3) Has been living continuously for 3 years (provided that absences not exceeding 60 days per 1 year for professional, business, or

emergency reasons are allowed) in RP prior to the filing of application and maintains such residence until the decree is entered

(4) Has been certified by his/her diplomatic or consular office or any appropriate government agency that he/she has the legal capacity to adopt in his/her country

(5) His/her government allows the adoptee to enter his/her country as his/her adoptee (6) Has submitted all the necessary clearances

and such certifications as may be required **Items 3, 4 and 5 may be waived under the following circumstances:

(a) Adopter is a former Filipino Citizen who seeks to adopt a relative within the 4th degree of consanguinity or affinity

(b) Adopter seeks to adopt the legitimate or illegitimate child of his/her Filipino spouse (c) Adopter is married to a Filipino Citizen and seeks

to adopt jointly with his/her spouse a relative within the 4th degree of consanguinity or affinity of the Filipino spouse

(3) Guardians

With respect to theirs ward after the termination of the guardianship and clearance of his/her accountabilities.

Husband and wife shall adopt jointly, EXCEPT: (1) If one spouse seeks to adopt the legitimate child

of the other

(2) If one of the spouse seeks to adopt his/her illegitimate child provided that other spouse has signified his/her consent

(3) If spouses are legally separated from each other Note: If spouses jointly adopt, parental authority shall be exercised jointly

WHO CAN BE ADOPTED

(a) Minor who has been administratively or judicially declared available for adoption

(b) Legitimate child of one spouse by another (c) Illegitimate child by a qualified adopter to

improve the child’s status to that of legitimacy (d) A person of legal age if, prior to the adoption,

said person has been consistently considered and treated by the adopter(s) as his/her child since minority

(e) A child whose previous adoption has been rescinded

(f) A child whose biological or adoptive parent(s) has died, provided that no proceedings shall be initiated within 6 months from the time of death of said parent(s)

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Persons whose written consent is necessary for adoption [Sec. 9]

(1) The prospective adoptee if 10 years or older (2) The prospective adoptee’s biological parents,

legal guardian or the government instrumentality or institution that has custody of the child

(3) The prospective adopters’ legitimate and adopted children who are 10 years or older

(4) The prospective adopters’ illegitimate children, if any, who are 10 years or older and living with them

(5) The spouse, if any, of the person adopting or to be adopted.

Note: A decree of adoption shall be effective as of the date the original petition was filed. It also applies in case the petitioner dies before the issuance of the decree of adoption to protect the interest of the adoptee.

PRE-ADOPTION PROCEDURES

(1) Voluntary Commitment of biological mother wanting to put her child up for adoption

(2) Involuntary Commitment of abandoned or neglected child

Notes:

(1) Abandoned child – no proper parental care/guidance; or parents have deserted him/her for at least 3 continuous months, including foundlings

(2) Neglected child – his basic needs have been deliberately unattended or inadequately attended within 3 continuous months either by: (a) Physical Neglect – child is malnourished, ill-

clad, without proper shelter, or without proper provisions

(b) Emotional Neglect – child is maltreated, raped, seduced, exploited, overworked, or in moral danger

(3) Required supporting documents for a petition for the declaration of involuntary commitment:

(a) Social Case Study Report by DSWD / LGU / institution charged with child’s custody (b) Proof of efforts to locate the child’s

parents/known relatives

(1) Written certification that a local/national radio/TV case was aired on 3 different occasions

(2) Publication in 1 newspaper of general circulation

(3) Police report / barangay certification of due diligence

(4) Returned registered mail to last known address of parents

(c) Birth certificate, if available

(d) Recent photo and photo upon abandonment of child

ADOPTION PROCEDURES

Inquiry of prospective adopters at DSWD

Attendance of DSWD Adoption Fora and

In document CERTIFICA AUTORIZA. La difusión del texto citado a través de la página Web de la Comisión Nacional del Mercado de Valores. (página 73-78)