CAPÍTULO 1: TIEMPO LIBRE Y OCIO
1.3. Ocio
1.3.2. El ocio y la revolución digital
A: The marriage was void because there was no marriage license. Their marriage was not exempt from the requisite of a marriage license because Roderick and Faye have not been cohabiting for at least 5 continuous years before the celebration of their marriage. Their lovers’ trysts and brief visitations did not amount to “cohabitation”.
Moreover, the Supreme Court held that for the marriage to be exempt from a license, there should be no impediment for them to marry each other during the entire 5 years of cohabitation.
Roderick and Faye could not have cohabited for 5 years of cohabitation. Roderick and Faye could not have been cohabited for 5 continuous years without impediment because Faye was then legally married to Brad. (2008 Bar Question)
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U N I V E R S I T Y O F S A N T O T O M A S F a c u l t a d d e D e r e c h o C i v i l and Brad, she is presumed to be the legitimate child of Faye and Brad, she is presumed to be the legitimate child of Faye and Brad. This presumption had become conclusive because the period of time to impugn her filiation had already prescribed.
Can Laica bring an action to impugn her own status on the ground that based on DNA results, Roderick is her biological father?
A: No, she cannot impugn her own filiation. The law does not allow a child to impugn his or her own filiation. In the problem, Laica’s legitimate filiation was accorded to her by operation of law which may be impugned only by Brad, or his heirs in the cases provided by law within the prescriptive period.
Can Laica be legitimated by the marriage of her biological parents?
A: No she cannot be legitimated by the marriage of her biological parents. In the first place she is not, under the law, the child of Roderick. In the second place, her biological parents could not have validly married each other at the time she was conceived and born simply because Faye was still married to Roderick at that time. Under Article 177 of the Family Code, only children conceived or born outside of wedlock of parents who, at the time of the conception of the child were not disqualified by any impediment to marry each other, may be legitimated. (2008 Bar Question)
RIGHTS OF CHILDREN
Q: What are the rights of legitimate and illegitimate children?
2. Ascendants; and 3. in proper cases,
brothers and
VIII. ADOPTION
A. DOMESTIC ADOPTION LAW
1. WHO CAN ADOPT
Q: Who may adopt?
A:
1. Filipino;
2. Alien;
3. Guardian with respect to his ward.
Q: What are the qualifications of a Filipino who may adopt?
A: LPG‐FEC‐16
1. Must be of Legal age;
2. In a Position to care for his children;
3. Good moral character;
4. Full civil capacity and legal rights;
5. Not been Convicted of any crime involving moral turpitude;
6. Emotionally and psychologically capable of caring for children;
7. GR: At least 16 years older than adoptee
XPN: It is not necessary that adopter be at least 16 years older:
a. Adopter is the biological parent of the adoptee,
b. Adopter is the spouse of adoptee’s parent.
Q: What are the qualifications of an alien who may adopt under R.A. 8552?
A: SD‐3
1. Possesses Same qualifications as those enumerated for Filipino adopters;
2. His country has Diplomatic relations with the Philippines;
3. GR: Has been living in the Philippines for at least 3 continuous years prior to the application for adoption and maintains such residence until adoption decree has been entered.
XPN:
a. He is a former Filipino who seeks to adopt a relative within the 4th civil degree of consanguinity or affinity,
b. He is married to a Filipino and seeks to adopt jointly with his spouse a relative within the 4th degree of consanguinity or affinity,
c. He is married to a Filipino and seeks to adopt the legitimate or illegitimate child of his filipino spouse.
Q: How may a guardian adopt his ward?
A: A guardian may only adopt his ward after termination of guardianship and clearance of his financial accountabilities.
Q: What is the rule when a person seeking to adopt has a spouse?
A:
GR: Such person must adopt with his spouse jointly. The general rule is that husband and wife shall jointly adopt.
XPN:
1. One spouse seeks to adopt the legitimate child of the other;
2. One spouse seeks to adopt his own illegitimate child;
3. Spouses are legally separated.
Q: Spouses Primo and Monica Lim, childless, were entrusted with the custody of two minor children, the parents of whom were unknown.
Eager of having children of their own, the spouses made it appear that they were the children’s parents by naming them Michelle P.
Lim and Michael Jude Lim.
Subsequently, Monina married Angel Olario after Primo’s death of her husband. She decided to adopt the children by availing the amnesty given under R.A. 8552 to those individuals who simulated the birth of a child. She filed separate petitions for the adoption of Michelle, then 25 years old and Michael, 18. Both Michelle and Michael gave consent to the adoption.
The trial court dismissed the petition and ruled that Monina should have filed the petition jointly with her new husband. Monina, in a Motion for Reconsideration argues that mere consent of her husband would suffice and that joint adoption is not needed, for the adoptees are already emancipated.
Is the trial court correct in dismissing the petitions for adoption?
A: Yes. Section 7 Article 3 of R.A. 8552 reads: Sec.
7 – Husband and wife shall jointly adopt, xxx.
The use of the word “shall” in the above‐quoted
provision means that joint adoption by the husband and the wife is mandatory. This is in consonance with the concept of joint parental authority over the child which is the ideal situation. As the child to be adopted is elevated to the level of a legitimate child, it but natural to require the spouses to adopt jointly. The rule also ensures harmony between the spouses.
The law is clear. There is no room for ambiguity.
Monina, having remarried at the time the petitions for adoption were filed, must jointly adopt. Since the petitions for adoption were filed only by Monina herself, without joining her husband, Olario, the trial court was correct in denying the petitions for adoption on this ground.
(In Re: Petition for Adoption of Michelle P. Lim, In Re: Petition for Adoption of Michael Jude P. Lim, Monina P. Lim, G.R. Nos. 168992‐93, May 21, 2009)
Q: Is joint adoption still needed when the adoptees are already emancipated?
A: Yes. Even if emancipation terminates parental authority, the adoptee is still considered a legitimate child of the adopter with all the rights of a legitimate child such as: (1) to bear the surname of the father and the mother; (2) to receive support from their parents; and (3) to be entitled to the legitime and other successional rights. Conversely, the adoptive parents shall, with respect to the adopted child, enjoy all the benefits to which biological parents are entitled such as support and successional rights.
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U N I V E R S I T Y O F S A N T O T O M A S F a c u l t a d d e D e r e c h o C i v i l
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
ADOPTEE.
Q: Who may be adopted?
A:
1. Any person below 18 of age who has been administratively or judicially declared available for adoption;
2. Legitimate child of one spouse by the other spouse;
3. Illegitimate child by a qualified adopter to improve the status of said child to that of legitimacy;
4. Person of legal age, if prior to the adoption, said person has been consistently considered and treated by adopters as their child since minority;
5. Child whose adoption has been previously rescinded;
6. Child whose biological parents have died provided no proceedings have been initiated within 6 months from
time of death.
Q: What is the definition of “child”?
A: A child is any person below 18 years old.
Q: What is the definition of “child legally free for adoption”?
A: A child voluntarily or involuntarily committed to the DSWD, freed of his biological parents, guardians, adopters in case of rescission.
Q: Whose written consent is necessary for adoption?
A:
1. Adoptee, if 10 years of age and over;
2. Biological parents of the child, if known or the legal guardian, or the proper government instrumentality which has legal custody of the child;
3. Legitimate children of the adopter, if 10 years old or over;
4. Illegitimate children of the adopter, if 10 years old or over and living with him;
5. Spouse of the adopted, if married;
6. Spouse of the adopter, if married.
Q: Bernadette filed a petition for adoption of the three minor children of her late brother, Ian. She alleged that when her brother died, the children were left to the care of their paternal grandmother, Anna, who went to Italy. This grandmother died however, and so she filed the petition for adoption. The minors gave their written consent to the adoption and so did all of her own grown‐up children. The trial court granted the decree of adoption even though the written consent of the biological mother of the children was not adduced by Bernadette. Was the trial court correct in granting the decree of adoption?
A: No. The rule is adoption statutes must be liberally construed in order to give spirit to their humane and salutary purpose which is to uplift the lives of unfortunate, needy or orphaned children. However, the discretion to approve adoption proceedings on the part of the courts should not to be anchored solely on those principles, but with due regard likewise to the natural rights of the parents over the child. The written consent of the biological parents is indispensable for the validity of the decree of adoption. Indeed, the natural right of a parent to his child requires that his consent must be obtained before his parental rights and duties
may be terminated and vested in the adoptive parents. In this case, since the minors' paternal grandmother had taken custody of them, her consent should have been secured instead in view of the absence of the biological mother. This is so under Sec. 9 (b) of R.A. 8552, otherwise known as the Domestic Adoption Act of 1998. Diwata failed in this respect, thus necessitating the dismissal of her petition for adoption. (Landingin v.
Republic,G.R. No. 164948, June 27, 2006)
Q: On what grounds may an adoptee seek the rescission of the adoption?
A:
1. Attempt on the life of the adoptee;
2. Sexual assault or violence;
3. Abandonment and failure to comply with parental obligations;
4. Repeated physical or verbal maltreatment by the adopter.
Note: Adopter cannot rescind but may disinherit the adoptee.
Q: What are the grounds by which an adopter may disinherit adoptee?
A:
1. Groundless accusation against the testator of a crime punishable by 6 years or more imprisonment;
2. Found guilty of attempt against the life of the testator, his/her spouse, descendant or ascendant;
3. Causes the testator to make changes or changes a testator’s will through violence, intimidation, fraud or undue influence;
4. Maltreatment of the testator by word or deed;
5. Conviction of a crime which carries a penalty of civil interdiction;
6. Adultery or concubinage with the testator’s wife;
7. Refusal without justifiable cause to support the parent or ascendant;
8. Leads a dishonorable or disgraceful life.
Q: What are the effects of adoption?
A:
1. GR: Severance of all legal ties between the biological parents and the adoptee and the same shall then be vested on the adopters
XPN: In cases where the biological parent is the spouse of the adopter;
2. Deemed a legitimate child of the adopter;
3. Acquires reciprocal rights and obligations arising from parent‐child relationship;
4. Right to use surname of adopter;
5. In legal and intestate succession, the adopters and the adoptee shall have reciprocal rights of succession without distinction from legitimate filiation.
However, if the adoptee and his/her biological parents had left a will, the law on testamentary succession shall govern.
Q: State the effects of rescission of the adoption in the Domestic Adoption Act of 1998 (RA 8552).
A:
1. If adoptee is still a minor or is incapacitated – Restoration of:
a. Parental authority of the adoptee’s biological parents, if known’ or b. Legal custody of the DSWD;
2. Reciprocal rights and obligations of the adopters and adoptee to each other shall be extinguished;
3. Court shall order the civil registrar to cancel the amended certificate of birth of the adoptee and restore his/her original birth certificate;
4. Succession rights shall revert to its status prior to adoption, but only as of the date of judgment of judicial rescission;
5. Vested rights acquired prior to judicial rescission shall be respected.
Despite several relationships with different women, Andrew remained unmarried. His first relationship with Brenda produced a daughter, Amy, now 30 years old. His second, with Carla, produced two sons: Jon and Ryan. His third, with Donna, bore him two daughters: Vina and Wilma. His fourth, while Elena, bore him no children although Elena has a daughter Jane, from a previous relationship. His last, with Fe, produced no biological children but they informally adopted without court proceedings, Sandy, now 13 years old, whom they consider as their own. Sandy, now 13 years old, whom they consider as their own. Sandy was orphaned as a baby and was entrusted to them by the midwife who attended to Sandy’s birth. All the children, including Amy, now live with Andrew in his house.
Is there any legal obstacle to the legal adoption of Amy by Andrew? To the legal adoption of Sandy by Andrew and Elena?
A: No, there is no legal obstacle to the legal adoption of Amy by Andrew. While a person of age may not be adopted, Amy falls within two exceptions: (1) she is an illegitimate child and she is being adopted by her illegitimate father to improve her status; and (2) even on the assumption that she is not an illegitimate child of Andrew, she may still be adopted, although of legal age, because she has been consistently considered and treated by the adopter as his own child since minority. In fact, she has been living with him until now.
There is a legal obstacle to the adoption of Sandy by Andrew and Elena. Andrew and Elena cannot adopt jointly because they are not married.
In his old age, can Andrew be legally entitled to claim support from Amy, Jon, Ryan, Vina, Wilma and Sandy assuming that all of them have the means to support him?
A: Andrew can claim support from them all, except from Sandy, who is not his child, legitimate, illegitimate or adopted.
Can Amy, Jon, Ryan, Vina, Wilma and Sandy legally claim support from each other?
A: Amy, Jon, Ryan, Vina and Wilma can ask support from each other because they are half‐
blood brothers and sisters, and Vina and Wilma are full‐blood sisters (Art. 195 [5], Family Code), but not Sandy who is not related to any of them.
Can Jon and Jane legally marry?
A: Jon and Jane can legally marry because they are not related to each other. Jane is not a daughter of Andrew. (2008 Bar Question)
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U N I V E R S I T Y O F S A N T O T O M A S F a c u l t a d d e D e r e c h o C i v i l
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
B. INTERCOUNTRY ADOPTION ACT OF 1995 . (RA 8043) .
ADOPTER
Q: Who may adopt?
A:
1. Any alien;
2. Filipino citizen, both permanently residing abroad.
Q: What are the qualifications needed for a
Filipino or alien to adopt?
A:
1. At least 27 years old and 16 years older than the child to be adopted at the time of the application unless adopter is the parent by nature of the child;
2. If married, his spouse must jointly file for adoption;
3. Has the capacity to act or assume all rights and responsibilities of parental authority;
4. Not been convicted of a crime involving moral turpitude;
5. Eligible to adopt under his national law;
6. In a position to provide for proper care and support and give necessary moral values;
7. Agrees to uphold the basic rights of the child mandated by the UN convention of rights of Child and the Philippine Laws;
8. Comes from a country with which the Philippines has diplomatic relations and adoption is allowed under his national law;
9. Possesses all the qualifications and none of the disqualifications under the law or other applicable Philippine laws.
Q: Sometime in 1990, Sarah, born a Filipino but by then a naturalized American citizen, and her American husband Sonny Cruz, filed a petition in the Regional Trial Court of Makati, for the adoption of the minor child of her sister, a Filipina, can the petition be granted?
A: It depends. If Sonny and Sarah have been residing in the Philippines for at least 3 years prior to the effectivity of R.A. 8552, the petition may be granted. Otherwise, the petition cannot be granted because the American husband is not qualified to adopt.
While the petition for adoption was filed in 1990, it was considered refiled upon the effectivity of R.A. 8552. This is the law applicable, the petition being still pending with the lower court. Under the Act, Sarah and Sonny must adopt jointly because they do not fall in any of the exceptions where one of them may adopt alone. When husband and wife must adopt jointly, the Supreme Court has held in a line of cases that both of them must be qualified to adopt. While Sarah, an alien, is qualified to adopt, for being a former Filipino citizen who seeks to adopt a relative within the 4th degree of consanguinity or affinity, Sonny, an alien, is not qualified to adopt because he is neither a former Filipino citizen nor
married to a Filipino. One of them not being qualified to adopt, their petition has to be denied.
However, if they have been residents of the Philippines 3 years prior to the effectivity of the Act and continues to reside here until the decree of adoption is entered, they are qualified to adopt the nephew of Sarah under Sec 7(b) thereof, and the petition may be granted. (2000 Bar Question)
ADOPTEE
Q: Who may be adopted?
A: Only a legally free child may be adopted provided the following are submitted:
1. Child study;
2. Birth certificate/ foundling certificate;
3. Deed of Voluntary Commitment/Decree of Abandonment/Death Certificate of parents;
4. Medical evaluation or history;
5. Psychological evaluation;
6. Recent photo;
Q: What is the definition of “child”?
A: A child is any person below 15 years old.
Q: What is a “legally‐free child”?
A: A child who has been voluntarily or involuntarily committed to the DSWD of the Philippines, in accordance with the Child Youth and Welfare Code
Note: No child shall be matched to a foreign adoptive family unless it is satisfactorily shown that the child cannot be adopted in the Philippines
GR: There shall be no physical transfer of a voluntarily committed child earlier than 6 months from the date of execution of Deed of Voluntary Commitment.
XPN:
1. Adoption by relative;
2. Child with special medical condition.
INTER‐COUNTRY ADOPTION BOARD
Q: What is the function of Inter‐Country Adoption Board?
A: The Inter Country Adoption Board acts as the central authority in matters relating to inter‐
country adoption. The Board shall ensure that all
country adoption. The Board shall ensure that all