Special Proceeding

Special Proceeding is defined as a remedy by which a party seeks to establish a

status, a right or a particular fact (Rule 1, Sec. 3c). In the absence of special provisions,
the rules provided for an ordinary action shall be, as far as practicable, applicable in
special proceedings
Special Proceedings Enumerated in the Rules of Court:
1. Settlement of estate of deceased persons
2. Escheat
3. Guardianship and custody of children
4. Trustees
5. Adoption
6. Rescission and revocation of adoption
7. Hospitalization of insane persons
8. Habeas corpus
9. Change of name
10. Voluntary dissolution of corporations
11. Judicial approval of voluntary recognition of minor natural children
12. Constitution of family home
13. Declaration of absence and death
14. Cancellation and correction of entries in the civil registry

Other Special Proceedings

1. Liquidation proceedings
2. Corporate rehabilitation
3. Recognition and enforcement of arbitration clause or award
4. Vacation, setting aside, correction or medication of an arbitral award
5. Any application with a court for arbitration assistance and supervision

Difference Between Ordinary Action and Special Proceeding

Ordinary Action

Special Proceeding

To protect or enforce a right or prevent or Involves the establishment of the right

redress a wrong
It

is

governed

status or fact.
by

ordinary

rules It

is

governed

by

special

rules

supplemented by special rules.

supplemented by ordinary rules.

It is heard by courts of general jurisdiction

Initiated by means of a petition and parties

respond by means of an opposition

Initiated by a pleading and parties respond Initiated by means of a petition and parties
through an answer

respond by means of an opposition

Ordinary Civil Action

Special Civil Action

One by which a party sues Civil

Action

Special Proceeding

subject

to Remedy by which a party

another for the enforcement special rules

seeks to establish a status,

or protection of a right or

a right, or a particular fact

the prevention or redress of

a wrong
Governed by the rules of Ordinary
ordinary civil actions

primarily

rules
but

apply Governed by special rules

subject

to and ordinary rules apply as

specific rules
Involves

two

or

more Involves

parties

parties

Initiated by complaints

Some

two

are

supplementary
or

more May involve only one party

initiated

by Initiated by petition

complaint while some are

initiated by petition
Based on a cause of action

Some special civil actions Not based on a cause of

have no cause of action

action
Corpus)

(Except

Habeas

II. Rules
This part presents the rules and proceedings of cases that concern special
proceedings that will provide as a guide when it comes to matters on remedies for the
status or rights of people.

SETTLEMENT OF ESTATE OF DECEASED PERSONS

Estates (Rule 73-74)

There are numerous cases that deceased people have left behind estates that
will either be of interest to those who they have left behind or that would need to be
given an administration to. Thus a settlement must happen in order for the estate to be
properly settled. The RTC of the province of where the deceased resided is the court
that shall handle the case. In that case, if the probate court allows the introduction of
evidence on ownership it is for the sole purpose of determining whether the subject
properties should be included in the inventory, which is within the probate courts
competence. The determination is only provisional subject to a proper action at the RTC
in a separate action to resolve the title. The jurisdiction of the probate court merely
relates to matters having to do with the settlement of the estate and the probate of wills,
the appointment and removal of administrators, executors, guardians and trustees. The
question of ownership is, as a rule, an extraneous matter which the probate court cannot
resolve with finality (Intestate Estate of Ismael Reyes, Heirs of Reyes vs. Reyes, GR
139587, Nov. 2, 2000).

In probate proceedings, the court orders the probate of the will of the decedent;
grants letters of administration of the party best entitled thereto or to any qualified
applicant; supervises and controls all acts of administration; hears and approves claims
against the estate of the deceased; orders payment of lawful debts; authorizes sale,
mortgage or any encumbrance of real estate; directs the delivery of the estate to those
entitled thereto; issue warrants and processes necessary to compel the attendance of
witnesses or to carry into effect their orders and judgments, and all other powers granted
them by law; if a person defies a probate order, it may issue a warrant for the
apprehension and

imprisonment of such person until he performs such order or

judgment, or is released. The court acts as trustee, and as such, should jealously guard
the estate and see to it that it is wisely and economically administered, not dissipated
(Timbol vs. Cano, 111 Phil. 923).

Summary settlement of estate is a judicial proceeding wherein, without the

appointment of

executor or administrator, and without delay, the competent court

summarily proceeds to value the estate of the decedent; ascertain his debts and order
payment thereof; allow his will if any; declare his heirs, devisee and legatees; and
distribute his net estate among his known heirs, devisees, and legatees, who shall
thereupon be entitled to receive and enter into the possession of the parts of the estate
so awarded to them, respectively.

If the decedent left no will and no debts and the heirs are all of age, or the minors
are represented by their judicial or legal representatives duly authorized for the purpose,
the parties may, without securing letters of administration, divide the estate among
themselves as they see fit by means of a public instrument filed in the office of the
register of deeds, and should they disagree, they may do so in an ordinary action of

partition. If there is only one heir, he may adjudicate to himself the entire estate by
means of an affidavit filed in the office of the register of deeds. Where the estate has
been summarily settled, the unpaid creditor may, within the two-year period, file a motion
in the court wherein such summary settlement was had for the payment of his credit.
After the lapse of the two-year period, an ordinary action may be instituted against the
distributees within the statute of limitations, but not against the bond. The action to annul
a deed of extrajudicial settlement on the ground of fraud should be filed within four years
from the discovery of the fraud (Gerona vs. De Guzman, L-19060, May 29, 1964).

Wills (Rule 75-76)

Probate of a will is a proceeding in rem. It cannot be dispensed with and
substituted by another proceeding, judicial or extrajudicial, without offending public
policy. It is mandatory as no will shall pass either real or personal property unless proved
and allowed in accordance with the Rules. It is imprescriptible, because it is required by
public policy and the state could not have intended to defeat the same by applying
thereto the statute of limitation of actions (Guevara vs. Guevara, 74 Phil. 479)

The ones who may petition for probate or are entitled to notice are any executor,
devisee, or legatee named in a will, or any other person interested in the estate, may, at
any time after the death of the testator, petition the court having jurisdiction to have the
will allowed, whether the same be in his possession or not, or is lost or destroyed. The
testator himself may, during his lifetime, petition the court for the allowance of his will.

The will shall be disallowed if not executed and attested as required by law; if the
testator was insane, or otherwise mentally incapable to make a will, at the time of its
execution; if it was executed under duress, or the influence of fear, or threats; if it was

procured by undue and improper pressure and influence, on the part of the beneficiary,
or of some other person for his benefit; if the signature of the testator was procured by
fraud or trick, and he did not intend that the instrument should be his will at the time of
fixing his signature there.

A will proved outside Philippines may be allowed here. Wills proved and allowed
in a foreign country, according to the laws of such country, may be allowed, filed, and
recorded by the proper Court of First Instance in the Philippines. When will allowed, and
effect thereof. If it appears at the hearing that the will should be allowed in the
Philippines, the court shall so allow it, and a certificate of its allowance, signed by the
judge, and attested by the seal of the court, to which shall be attached a copy of the will,
shall be filed and recorded by the clerk, and the will shall have the same effect as if
originally proved and allowed in such court. Certificate of allowance attached to prove
will.

The general rule universally recognized is that administration extends only to the
assets of the decedent found within the state or country where it was granted, so that an
administrator appointed in one state or country has no power over the property in
another state or country (Leon & Ghezzi vs. Manufacturers Life Ins., 80 Phil. 495).
When a person dies intestate owning property in the country of his domicile as well as in
foreign country, administration shall be had in both countries. That which is granted in
the jurisdiction of the decedents domicile is termed the principal administration, while
any other administration is termed ancillary administration. The ancillary administration is
proper whenever a person dies leaving in a country other than that of his domicile,
property to be administered in the nature of assets of the decedent, liable for his
individual debts or to be distributed among his heirs (Johannes vs. Harvey, 43 Phil. 175).

Letters Testamentary and of Administration (Rule 77)

Letters testamentary is the appointment issued by a probate court, after the will
has been admitted to probate, to the executor named in the will to administer the estate
of the deceased testator, provided the executor named in the will is competent, accepts
the trust and gives a bond. Any person who is a minor, not a resident of the Philippines,
is in the opinion of the court unfit to execute the duties of the trust by reason of
drunkenness, improvidence, or want of understanding or intergrity or by reason of
conviction of an offense involving moral turpitude may not serve as executor or
administrator.

The administrator can be a surviving spouse, or next of kin, or both, or person as

such surviving spouse, or next of kin, requests; One or more of the principal creditors if
such surviving spouse, or next of kin, or the person selected,

be

incompetent

or

unwilling, or if they neglect for 30 days after the death of the decedent to apply for
administration or to request that administration be granted to some other person, it may
be granted to, if competent and willing to serve; Such other person as the court may
select.

Powers and duties of Executors and Administrators; restrictions on the powers

(Rule 84)
An executor is the person nominated by a testator to carry out the directions and
requests in his will and to dispose of his property according to his testamentary
provisions after his death. An administrator is person appointed by the court, in
accordance with the governing statute, to administer and settle intestate estate and such
testate estate as no competent executor was designated by the testator. Executor or
administrators are to keep buildings in repair. An executor or administrator shall maintain

in tenantable repair the houses and other structures and fences belonging to the estate,
and deliver the same in such repair to the heirs or devisees when directed so to do by
the court.

An executor or administrator shall have the right to the possession and

management of the real as well as the personal estate of the deceased so long as it is
necessary for the payment of the debts and the expenses of administration.

An administrator of an intestate cannot exercise the right of legal redemption

over a portion of the property owned in common sold by one of the other co-owners
since this is not within the powers of administration (Caro vs. CA, 113 SCRA 10). Where
the estate of a deceased person is already the subject of a testate or intestate
proceeding, the administrator cannot enter into any transaction involving it without any
prior approval of the Court (Estate of Olave vs. Reyes, 123 SCRA 767). The right of an
executor or administrator to the possession and management of the real and personal
properties of the deceased is not absolute and can only be exercised so long as it is
necessary for the payment of the debts and expenses of administration (Manaquil vs.
Villegas, 189 SCRA 335).

When there is delay in granting letters testamentary or of administration by any

cause, including an appeal from the allowance or disallowance of a will, the court may
appoint a special administrator to take possession and charge of the estate of the
deceased until the questions causing the delay are decided and executors or
administrators appointed. Court may remove or accept resignation of executor or
administrator. Proceedings may happen upon death, resignation, or removal.

Claims Against the Estate (Rule 86-87)

Administration is for the purpose of liquidation of the estate and distribution of the
residue among the heirs and legatees. Liquidation means the determination of all the
assets of the estate and payment of all debts and expenses. The purpose of
presentation of claims against decedents of the estate in the probate court is to protect
the estate of deceased persons. That way, the executor or administrator will be able to
examine each claim and determine whether it is a proper one which should be allowed.
Further, the primary object of the provisions requiring presentation is to apprise the
administrator and the probate court of the existence of the claim so that a proper and
timely arrangement may be made for its payment in full or by pro rata portion in the due
course of the administration, inasmuch as upon the death of a person, his entire estate
is burdened with the payment of all his debts and no creditor shall enjoy any preference
or priority; all of them shall share pro rata in the liquidation of the estate of the deceased.

The rule requires certain creditors of a deceased person to present their claims
for examination and allowance within a specified period, the purpose thereof being to
settle the estate with dispatch, so that the residue may be delivered to the persons
entitled thereto without their being afterwards called upon to respond in actions for
claims, which, under the ordinary statute of limitations, have not yet prescribed (Santos
vs. Manarang, 27 Phil. 213).

When there is delay in granting letters, testamentary or of administration by any

cause including an appeal from the allowance or disallowance of a will, the court may
appoint a special administrator to take possession and charge of the estate of the
deceased until the questions causing the delay are decided and executors or
administrators appointed.

No action upon a claim for the recovery of money or debts or interest thereon
shall be commenced against the executor or administrator. An action to recover real or
personal property, or an interest therein, from the estate, or to enforce a lien thereon,
and actions to recover damages for an injury to person or property, real or personal, may
be commenced against the executor or administrator. Whenever a party to a pending
action dies, and the claim is not thereby extinguished, it shall be the duty of his counsel
to inform the court within thirty (30) days after such death of the fact thereof, and to give
the name and address of his legal representative or representatives. Failure of counsel
to comply with this duty shall be a ground for disciplinary action. The heirs of the
deceased may be allowed to be substituted for the deceased, without requiring the
appointment of an executor or administrator and the court may appoint a guardian ad
litem for the minor heirs.

Payment of Debts (Rule 88-90)

If there are sufficient properties, the debts shall be paid, thus all debts shall be
paid in full within the time limited for the purpose; If the testator makes provision by his
will, or designates the estate to be appropriated for the payment of debts they shall be
paid according to the provisions of the will, which must be respected; If the estate
designated in the will is not sufficient, such part of the estate as is not disposed of by will
shall be appropriated for the purpose; The personal estate not disposed of by will shall
be first chargeable with payment of debts and expenses; If the personal estate is not
sufficient, or its sale would be detrimental to the participants of the estate, the real estate
not disposed of by will shall be sold or encumbered for that purpose; Any deficiency shall
be met by contributions from devisees, legatees and heirs who have

entered into

possession of portions of the estate before debts and expenses have been paid; The

executor or administrator shall retain sufficient estate to pay contingent claims when the
same becomes absolute.

If the estate is insolvent, the debts shall be paid in the following manner: The
executor or administrator shall pay the debts in accordance with the preference of
credits established by the Civil Code; No creditor of any one class shall receive any
payment until those of the preceding class are paid; If there are no assets sufficient to
pay the credits of any one class of creditors, each creditor within such class shall be paid
a dividend in proportion to his claim; Where the deceased was a non-resident, his estate
in the Philippines shall be disposed of in such a way that. It must be noted that the
payments of debts of the decedent shall be made pursuant to the order of the probate
court.

Before there could be a distribution of the estate, the following two stages must
be followed: Payment of obligations (liquidation of estate) under the Rules, the
distribution of a decedents assets may only be ordered when the inheritance tax, among
other is paid; when a sufficient bond is given to meet the payment of the inheritance tax
and all other obligations; and when the payment of the said tax and all other obligations
has been provided for. There must first be declaration of heirs to determine to whom the
residue of the estate should be distributed. A separate action for the declaration of heirs
is not proper. And likewise after, not before the declaration of heirs is made, may the
residue be distributed and delivered to the heirs. The settlement of a decedents estate
is a proceeding in rem which is binding against the whole world. All persons having
interest in the subject matter involved, whether they were notified or not, are equally
bound.

When the debts, funeral charges, and expenses of administration, the allowance
to the widow, and inheritance tax, if any, chargeable to the estate in accordance with
law, have been paid, the court, on the application of the executor or administrator, or of a
person interested in the estate, and after hearing upon notice, shall assign the residue of
the estate to the persons entitled to the same, naming them and the proportions, or
parts, to which each is entitled, and such person may demand and recover their
respective shares from the executor or administrator, or any other person having the
same in his possession. If there is a controversy before the court as to who are the
lawful heirs of the deceased person or as to the distributive shares to which each person
is entitled under the law, the controversy shall be heard and decided as in ordinary
cases. No distribution shall be allowed until the payment of the obligations above
mentioned has been made or provided for, unless the distributees, or any of them, give a
bond, in a sum to be fixed by the court, conditioned for the payment of said obligations
within such time as the court directs. If at the time of the distribution the executor or
administrator has retained sufficient effects in his hands which may lawfully be applied
for the expenses of partition of the properties distributed, such expenses of partition may
be paid by such executor or administrator when it appears equitable to the court and not
inconsistent with the intention of the testator; otherwise, they shall be paid by the parties
in proportion to their respective shares or interest in the premises, and the
apportionment shall be settled and allowed by the court, and, if any person interested in
the partition does not pay his proportion or share, the court may issue an execution in
the name of the executor or administrator against the party not paying for the sum
assessed.

Project of partition is a document prepared by the executor or administrator

setting forth the manner in which the estate of the deceased is to be distributed among
the heirs. If the estate is a testate estate, the project of partition must conform to the
terms of the will; if intestate, the project of partition must be in accordance with the
provisions of the Civil Code (Camia de Reyes vs. Reyes de Ilano, 63 Phil. 629).

The only instances when the probate court may issue a writ of execution is when
there is a need to satisfy the contributing shares of devisees, legatees and heirs in
possession of the decedents assets; To enforce payment of expenses of partition; To
satisfy the costs when a person is cited for examination in probate proceedings.

ESCHEATS (Rule 91)

Escheats is the proceeding whereby the real and personal property of a
deceased person in the Philippines, who dies without leaving any will or legal heirs,
becomes the property of the State upon his death. This doctrine is exercised because in
the order of succession under the Civil Code, the State is the last heir of the decedent.
There are three instances where escheats are executed. First, if the person dies
intestate leaving no heir but leaving a property in the Philippines. Second, in a form of a
reverter when the donee in tail or issue died without issue and a stranger abated. Third
is guided under the Unclaimed Balances Act where dormant accounts for atleast 10
years shall be escheated.
For the escheat to be valid, it must follow and fulfil the requisites. The requisites
are that there should be a person who died intestate, that the said person left no heirs or
persons by law entitled to the same, and that the deceased left properties.
The escheated property will be assigned not just to anyone or anywhere. There
are guidelines as to where the escheated property in question will go. When the proper
is a personal property of the deceased, it will be escheated to the municipality or city
where the deceased last resided. If the proper is a real property, it will go to the
municipality or city where the property is situated. Finally, if the deceased never resided
in the Philippines, it will go to the municipality or the city where the property may be
found.

Rules on Guardianship of Minors (Rules 92-97)

Legal guardianship of a person and property of a minor is always vested in the
father and mother without the need for a court appointment. If, however, the parents or
other guardian of the minor or incompetent die, disappear or deprive them of parental
authority, guardianship can be petitioned by any relative, friend, other person on behalf
of a resident minor, and the Director of Health, in favour of the insane person who
should be hospitalized or an isolated leper.
Non-residents of the Philippines should not be appointed as guardians by the
courts. The courts are responsible for the protection of the estates of the deceased and
the welfare of minors. If guardianship is appointed to those who do not reside within
Philippine islands and outside their jurisdiction, the court will find it very difficult to
comply with their responsibility. (Guerrero, etc. v Teran, 13 Phil. 212)
The guardianship of a minor or an incompetent may be instituted at the Regional
Trial Court where the minor or incompetent resides or if the residence is in a foreign
country, then in the Regional Trial Court of the province that the property is located.
Under this rule, the word competent includes those persons suffering the penalty of civil
interdiction or who are hospitalized lepers, prodigals, deaf and dumb, illiterate, those
who have an unsound mind, those who have lucid intervals, and even those do not have
an unsound mind yet can become an easy prey for deceit and exploitation.
There is no need of payment or additional fees if ever a transfer of venue
occurs. The court taking care of the guardianship may transfer the same to a court of
another province where the ward acquired real property or has transferred to a bona fide
residence of that area.

The procedure of the appointment of guardianship shall require the court to fix a
time and place for the hearing and give notice to the persons involve in the petition and
the incompetent. There is no publication required unless the incompetent is a nonresident. Those who are opposed to the petition shall put it in writing and the grounds
must be the inquiry of the competency of the incompetent as well as the unsuitability of
the persons for whom the letters are prayed.
Ancillary Guardianship refers to the guardianship in a state other than that in
which guardianship is originally granted. (Herrera P. 276)
Before a person is appointed as a guardian and execute trust, he should first give
a bond. This is to ensure that the minor or the incompetents property is protected and
assured to the end of an honest administration of his funds. When required by statutes
to give a bond, no person can qualify and act as a guardian without complying with this
condition precedent (Herrera, p. 282). The conditions of this rely on an inventory to make
and submit to the court within 3 months of all the estate of his ward, to provide for the
care, custody and education of his ward, to render a true and just account of all the
estate of his ward and, to perform all the orders of the court by him to perform.
A guardian may sell or encumber a property of his ward if he deems it necessary
for the benefit of the minor or incompetent or the income is not sufficient for the
livelihood of the same. Therefore for this to ensue, a petition must be verified as well as
a notice given to the next of kin for a hearing to show why petition must not be granted.
Sale of the wards realty by the guardian without authority from the court is considered
Void. Under the law, a parent acting merely as a legal administrator of the property of
his/her children, does not have the power to dispose of or alienate the property of said

minor without judicial approval (Lindain v Court of Appeals , G.R. No. 95305, August 20,
1992)
As guardians are appointed by the court, they have their corresponding powers
and duties to fulfil. They are responsible for the care and custody of the persons of their
ward and the management of his estate. If the person of the ward of a guardian is a nonresident, all the estate located within the Philippines shall be managed by the latter and
no court other than that in which such guardian was appointed shall have jurisdiction
over the guardianship. Conflicts regarding the ownership or title of the property in the
hands of the guardian in his capacity as such should be litigated in a separated
proceeding, the court in guardianship proceeding, being solely concerned with the
wards care and custody and proper administration of his properties. (Viloria v
Administrator of Veterans Affairs, L-9620, June 28, 1957)
The guardian is to pay the debts of the ward through proceeds from his own
personal estate and the income of his real estate. They are also tasked to collect debts,
settle accounts and appear in action for ward. The estate of the ward is to be managed
frugally and proceedings be applied to the maintenance of the ward. The guardian is
bound to exercise such diligence and prudence as reasonable men ordinarily employ in
the conduct of their own affairs and will be held liable for any loss which results from his
failure to exercise such prudence and diligence (Herrera, p. 301). A guardian may be
authorized to join in partition proceedings provided that there was a hearing conducted
regarding the matter, notice to the relatives of the ward and a careful investigation as to
the necessity and propriety of the proposed action. However only the expenses he
incurred for the execution of his trust is to be compensated and this should not exceed
15% of the net income of the ward. If embezzling or concealing of property by the
guardian is discovered, the proper criminal proceeding shall take place. He should also

submit an inventory of his wards properties within three months to the court after his
appointment and annually thereafter.
There are numerous reasons as to why guardianship of a minor or an
incompetent is terminated. A person considered as an incompetent would need a
guardian for his care, custody and estates. Guardianship to an incompetent may be
terminated if it is found that he is no longer incompetent and must submit to the court a
petition of his present competence. Another reason for the guardianship to be terminated
is when the guardian is removed because of insanity, incapability or unsuitability to
discharge functions, wastage or mismanagement of the property of the ward or the
failure to make an account within 30 days. The guardian is reassigned when it reappears
to allow the same. Marriage, voluntary emancipation or coming of age of the minor are
also grounds for the termination of guardianship.

Trustees (Rule 98)

"A trustee is a person appointed, or required by law, to execute a trust; one in
whom an estate, interest, or power is vested, under an express or implied agreement to
administer or exercise it for the benefit or to the use of another." (Blacks Law
Dictionary). Rules on special proceedings state that trustees are necessary to carry in
effects wills when the testator omitted to appoint a trustee in the Philippines
(Testamentary Trust) as well as other written instruments where the trustee therein
declines, resigns, dies, or is removed before the accomplishment of trust (Contractual
Trust).

a. Adoption and Rescission and Revocation for Adoption (Amended)

Rules on Domestic Adoption (A.M. No. 02-6-02)

Petition for Domestic Adoption

Order of Hearing by the Court

Child and Home Study reports by the

Social Worker

Hearing on the petition for Adoption

Supervised Trial Custody

Adoption decree issued by the Court

Who may adopt (Section 4)

A. Any Filipino Citizen1. Of legal age;
2. In Possession of full civil capacity and legal rights;
3. Of good moral character;
4. Has not been convicted of any crime involving moral turpitude;
5. Emotionally and psychologically capable of caring for children;
6. At least 16 years older than the adoptee; and
7. In a position to support and care for his/her children in keeping with the
means of the family.
B. Any alien possessing the same qualifications as above, Provided:
1. That his country has diplomatic relations with the Philippines;
2. That he has been living in the Philippines for at least 3 CONTINUOUS
YEARS prior to the filing of the application for adoption;
3. Maintains residence until the adoption decree is entered;
4. Certified to have legal capacity to adopt by his count; and
5. That his government allows the adoptee to enter his country as hi adopted
child.
C. The guardian with respect to the ward after the termination of the guardianship
and clearance of his financial accountabilities.

Who may be adopted (Sec. 5)

1. Any person below eighteen (18) years of age who has been judicially declared
available for adoption or voluntarily committed to DSWD;

2. The legitimate child of one spouse, by the other spouse;

3. An illegitimate child, by a qualified adopter to raise the status of the former to that
of legitimacy;
4. A person of legal age regardless of civil status, if, prior to the adoption, said
person has been consistently considered and treated by the adopters as their
own child since minority;
5. A child whose adoption has been previously rescinded
6. A child whose biological or adoptive parents have died, but no proceedings shall
be initiated within 6 months from the time of death of said parents;
7. A child not otherwise disqualified by law or these rules.
A Child Legally Available for adoption- it refers to a child who has been voluntarily or
involuntarily committed to the DSWD it to a duly licensed and accredited child-placing or
child caring agency, free of the parental authority of his biological parents or in case or
rescission of adoption, his guardian or adopter/s.
Two ways to commit a child
1.) Administratively/Voluntarily- In this case, the parent or guardian of the child
voluntarily committed him to the DSWD or any duly licensed child placement or
child caring agency. The child must be surrendered in writing. Such written
instrument must be notarized and signed in the presence of an authorized
representative of the department after counselling has been made to encourage
the parents to keep the child.
2.) Judicial/Involuntary- Following the procedure in the proposed rule on
commitment of children.
General rule- Husband and wife shall jointly adopt.

Exceptions
1.) If one spouse seeks to adopt the legitimate child of the other;
2.) If one spouse seeks to adopt his own illegitimate son/ daughter provided that the
other spouse has signified his consent thereto;
3.) If the spouses are legally separated from each other.

Procedure
A. Order of Hearing
-It must be published at least once a week for 3 consecutive weeks
-At the discretion of the court, copies of the order of hearing shall be furnished to
the office of the Solicitor General. Through the provincial or city prosecutor, the
DSWD and the biological parents of the adoptee, IF KNOWN.
-If a change in the name of the adoptee is prayed for in the petition notice to the
Solicitor General shall be Mandatory.
B. Child and Home Study Reports
-The social worker verifies with the Civil Registry the real identity and the name
of the adoptee and the fact that he is legally available for the adoption.
-The social worker may make recommendations to the court if he finds some
grounds to deny the petition.
C. Hearing
It is to be held within 6 months from the date of issuance of the order except in
the case of application for change of name which hearing must not be within 4

months after last publication nor within 30 days prior to election. The petitioner
and the adoptee must personally appear and the former must testify in court.

D. Supervised Trial Custody (STC)

Before issuance of decree of adoption the court shall give the adopter trial
custody of the adoptee for at least 6 months in order for the parties to adjust
psychologically and emotionally with each other and to establish a bonding
relationship.

E. Decree of Adoption
The decree of adoption shall take effect as of the date of filing of the original
petition. In case of change of name, the decree shall be submitted to the Civil
Registrar where the court issuing the same is situated. An amended birth
certificate shall be issued. The original birth certificate shall be stamped
cancelled and shall be sealed in the Civil Registry records.
Effects of Adoption
1. Adopter will exercise parental authority;
2. All legal ties between biological parents and the adoptee shall be severed except
when biological parent is spouse of adopter;
3. Adoptee shall be considered legitimate child of adopter for all intents and
purposes;
4. Adopters shall have reciprocal rights of succession without distinction from
legitimate filiation.

Who may rescind the adoption?

The adopter cannot rescind the adoption, only the adoptee may rescind within 5
years from reaching the age of majority or after recovery from incompetency. Such a
petition for rescission is to be filed in the Family Court where the adoptee resides.
Inter-country Adoption (A.M. No. 02-6-02)
Where to File Petition (Sec. 28)
1. A verified petition to adopt a Filipino child may be filed by a foreign national or
Filipino citizen permanently residing abroad with the Family Court having
jurisdiction over the place where the child resides or may be found.
2. It may be filed directly with the Inter Country Adoption Board
Who may Adopt
1. Any alien or Filipino citizen permanently residing abroad who is at least twenty
seven years of age
2. Other requirements are the same as with RA 8552.
Who may be adopted (Sec. 29)
Only a child legally available for domestic adoption may be the subject of InterCountry Adoption. A child under the Inter-Country Adoption Act is defined as any
person below fifteen (15) years of age.
The board shall ensure that all possibilities for adoption of the child under the Family
Code have been exhausted and that inter-country adoption is in the best interest of
the child.

Contents of Petition (Sec. 30)

Petitioner must allege:
1.) His age and the age of the child to be adopted, showing that he is at least 27
years of age and at least 16 years older than the child to be adopted at the time
of application, unless the petitioner is the parent by nature of the child to be
adopted or the spouse of such parent, in which case the age difference does not
apply;
2.) If married, the name of the spouse who must be joined as co-petitioner except
when the adoptee is a legitimate child of his spouse;
3.) That he has the capacity to act and assume all rights and responsibilities of
parental author under his national laws, and has undergone the appropriate
counselling from an accredited counsellor in his country;
4.) That he has not been convicted of a crime involving moral turpitude;
5.) That he is eligible to adopt under his national law;
6.) That he can provide the proper care and support and instill the necessary moral
values and example to all his children, including the child to be adopted;
7.) That he agrees to uphold the basic rights of the child, as embodied under the
Philippine rules and regulations issued to implement the provision of Republic
Act No. 8043;
8.) That he comes from a country with which the Philippines has diplomatic relations
and whose government maintains a similarly authorized and accredited agency
and that adoption of a Filipino child is allowed under his national laws; and
9.) That he possesses all the qualifications and none of the disqualification provided
in the Rule.

Annexes (Sec. 31)

The following must be in writing and officially translated in English:
1. Birth certificate of petitioner;
2. Marriage contract (if marriage and if applicable the divorce decree or judgement
dissolving the marriage)
3. Sworn statement of consent
4. Physical, medical and psychological evaluation
5. Income tax returns
6. Police clearance
7. Character reference
8. Full body postcard size picture.
b.Rescission and revocation for the Adoption Rule (Amended by R.A. 8552)
Under the Domestic Adoption Act of 1988, the Adopter can no longer rescind the
adoption. He can merely disinherit the adoptee in accordance with the provisions of the
Civil Code. Rescission relates only as to the date of the judgement. Hence, vested rights
prior to rescission should be respected.
Who files:
1. Adoptee:
a. Over 18 years of age;
b. If still a minor with the assistance of DSWD.
2. Guardian or Counsel, if over 18 but incapacitated.

Grounds for Rescission (Sec. 19)

1.) Repeated physical violence and verbal maltreatment by the adopter despite
having undergone counselling;
2.) Attempt on the life of the adoptee;
3.) Sexual assault or violence; or
4.) Abandonment or failure to comply with parental obligations
Period within which to file verified petition
Within 5 years from reaching the age of majority or after recovery from
incompetency. Adverse party shall file his ANSWER within 25 days from the receipt of
order of court requiring him to answer.
Effects of Judgement of Rescission
1.) Parental authority of biological parent or legal custody of DSWD will be restored;
2.) Reciprocal rights of adoptee and adopter will be extinguished;
3.) Vested rights acquired prior to judicial rescission shall be respected;
4.) Successional rights shall revert to its status prior to adoption, as of the date of
judgement of judicial rescission;
5.) Adoptee shall use the name stated in his original birth or foundling certificate;
6.) Civil registrar will reinstate his original birth or foundling certificate.
Unlike in revocation of guardianship, revocation of adoption is a separate proceeding
from the adoption.

Proceedings for Hospitalization of Insane Persons (Rule 101)

Insanity is a condition of the mind which is so impaired in function or so deranged
as to induce a deviation from a normal conduct on the person so afflicted. A person
suffering from insanity has the option of hospitalization if the proper and conditions are
fulfilled. An insane person may be hospitalized under special proceedings by the
Director of Health with the assistance of city or provincial fiscal. The director of health
possesses the opinion that the commitment of the persons alleged to be insane is for
public welfare or to the welfare of said person. Also, such person or the one having
charge of him is opposed to his being taken to a hospital or asylum.
As a general rule, the burden of proving insanity is on the plaintiff who alleged it.
But as an exception to this rule, the defendant may prove the existence of insanity when
it is set up as an affirmative defense or the defense where it may absolve the defendant
from liability. To discharge the same, again, the director of health may file this petition in
the RTC which ordered the commitment, when he is of the opinion that the person is
permanently or temporarily cured or may be released without danger.

Habeas Corpus (Rule 102)

A writ of habeas corpus directs a person who detains another to produce the
body of the prisoner at a certain time and place, with the day and the cause of his
caption and detention, to do, submit to, and receive whatsoever the court or judge
awarding the writ shall consider in that behalf. This is the remedy for all cases of (1)
illegal detention or (2)where the rightful custody of a person is withheld from one entitled
to such custody. To be entitled to the writ, the standard required is actual and effective
restraint and not merely moral or nominal.

However, actual physical restraint is not always required; any restraint which will
prejudice freedom of action is sufficient (Moncupa v. Enrile ). The fact that no physical
force was exerted to keep a person does not make less real the deprivation of his
personal freedom which includes the freedom of movement, freedom to transfer from
one place to another, freedom to choose ones residence. Freedom may be lost due to
internal moral compulsion, to founded or groundless fear, to erroneous belief in the
existence of an imaginary power of an impostor to cause harm if not blindly obeyed, to
any other psychological element, that may curtail the mental faculty of choice or the
unhampered exercise of the will. If the actual effect of such psychological spell is to
place a person at the mercy of another, the victim is entitled to the protection of the
courts of justice as much as the individual who is illegally deprived of liberty by duress of
physical coercion. It may also be availed of where, as a consequence of a judicial
proceeding, (a) there has been a deprivation of a constitutional right resulting in the
restraint of a person; (b) the court had no jurisdiction to impose the sentence; or (c)an
excessive penalty has been imposed, such sentence being void as to the excess. Where
a deprivation of a constitutional right is established, the court that rendered the judgment
is deemed ousted of jurisdiction and habeas corpus is the remedy to assail the legality of
detention.
A petition for habeas corpus is like a proceeding in rem as it is an inquisition of
the government, at the suggestion and instance of the individual, most probably, but still
in the name and capacity of the sovereign. It is constituted for the purpose of fixing the
status of a person. No judgment can be entered against anybody since there is no real
plaintiff and defendant.
Habeas corpus is not in the nature of a writ of error, nor is it intended as
substitute for the trial courts function. It cannot take the place of appeal, certiorari or writ

of error. Thus, it cannot be used to investigate and consider questions of error that may
be raised relating to procedure or on the merits. The inquiry in a habeas corpus
proceeding is addressed to the question of whether the proceedings and the assailed
order are, for any reason, null and void. It is a summary remedy.
In order for habeas corpus to lie, it is necessary that the judgment of the court
which resulted in the allegedly illegal deprivation of liberty is no longer appealable, in
which case the writ is in the nature of a collateral attack against a final but void
judgment. If still appealable, there remedy is an appeal because habeas corpus is not a
substitute for appeal. It is not issued as a matter of right but in the sound discretion of
the court or judge.
What are not grounds for issuance of the writ? The alleged circumstances that
the information is invalid because the preliminary investigation is invalid and that the
offense has already prescribed are not grounds for the issuance of writ of habeas
corpus. If petitioner claims that no preliminary investigation had been validly conducted,
his remedy is to ask the court which issued the warrant of commitment for an
investigation or reinvestigation of the case. Habeas corpus will not lie where the person
alleged to be restrained of his liberty is in the custody of an officer under process issued
by a court which has jurisdiction to do so. The writ will not issue if the restraint is
voluntary.
The writ, if issued by the Supreme Court, may be made returnable before the
RTC. The latter court does not there by become merely a recommendatory body, whose
findings and conclusions are devoid of effect unless the Supreme Court acts on its
recommendation, but such lower court acquires the authority and the duty to inquire into
the facts and the law pertinent to the legality or illegality of the petitioners detention and

to order his discharge from confinement should it find that he is unlawfully imprisoned or
restrained.
Petition must be verified but if not, it is not fatally defective in form. In
Villavicencio v. Lukban, the Supreme Court has held that it is the duty of a court to issue
the writ if there is evidence that a person is being unjustly restrained of his liberty within
its jurisdiction even if there is no application there for. However, it is necessary that the
person on whose behalf the petition is filed is under actual and effective restraint or
deprivation of liberty.
Where the person is detained under governmental authority and the illegality of
his detention is not patent from the petition for the writ, the court may issue a citation to
the government officer having the person in his custody to show cause why the writ of
habeas corpus should not issue. This is known as a preliminary citation, as distinguished
from the peremptory writ which is issued when the cause of the detention appears to be
patently illegal, and the non-compliance therewith is punishable.
If the detention is by reason of public authority, the return is considered prima
facie evidence of the validity of the restraint and the petitioner has the burden of proving
that the restraint is illegal. On the other hand, if the detention is by reason of private
authority, the return is considered only a plea of the facts asserted therein and the
person responsible for the detention has the burden of proof to establish that the
detention is legal and justified.
Where the prisoner has been detained and held without bail although the offense
is bail able, he may in a habeas corpus proceeding be allowed to post bail to ensure his
appearance before the court where he was charged with said offense. If the offense is
not bail able, as where it involves a capital offense and the evidence of guilt is strong, he

cannot obtain his provisional liberty on bail by habeas corpus proceedings in another
court. If the person is detained under governmental authority and the illegality of his
detention is not patent from the petition for the writ, the court may issue a citation to the
government officer having the person in his custody to show because why the writ of
habeas corpus should not issue. This is known as a preliminary citation, as distinguished
from the peremptory writ which is issued when the cause of the detention appears to be
patently illegal, and the non-compliance therewith is punishable.
The release contemplated under a writ of habeas corpus is one which is free
from any involuntary restraint. When the person so released continues to be denied one
or more of his constitutional freedoms, where there is present a denial of due process, or
where the restraints are not merely involuntary but appear to be unnecessary, the
person concerned or those acting on his behalf may still avail of the privilege of the writ,
as in the case of Moncupa v. Enrile, a writ of habeas corpus reaches the body but not
the record, while a writ of certiorari reaches the record, but not the body. They are two
different things. Thus, certiorari may lie with the writ of habeas corpus for the purpose of
review, in recognition of the supervisory powers of superior courts, but the reverse is not
true, or where the petitioner has resorted to the remedy of appeal or certiorari because
habeas corpus, as stated earlier, cannot be made to perform the functions of a writ of
error or appeal for the purpose of reviewing mere errors or irregularities in the
proceedings of a court having jurisdiction over the person and the subject matter.
The writ of habeas corpus is not intended as a substitute for the functions of a
trial court and absent exceptional circumstances, the orderly course of trial should be
pursued and the usual remedies be exhausted before the writ may be invoked. Habeas
corpus is normally not available in advance of trial to determine jurisdictional errors that
may arise. While the extraordinary writ of habeas corpus is the appropriate remedy to

inquire into questions of constitutional rights, it does not find the conditions of the
detainees confinement to be a proper subject of inquiry therein
Habeas corpus only extends to the fact and duration of confinement. It exists as
a speedy and effectual remedy to relieve persons from unlawful restraint, but is not a
means for the redress of grievances or to seek injunctive relief or damages in the
proceedings therein. However, this does not foreclose the right of the victims to seek
redress of grievances in the proper actions or proceedings in court, or for the detainees
to obtain injunctive relief or damages through the proper remedies provided by law.
Rule on the Writ of Amparo (A.M. No. 07-9-12-SC)
The Writ of Amparo is a remedy available to any person whose right to life, liberty
and security is violated or threatened with violation by an unlawful act or omission of a
public official or employee, or even of that of a private individual or representation. This
writ is created in efficacy with the writ of habeas corpus to deal with the extralegal
killings (killings committed without due process of law) as well as enforced
disappearances (arrest, detention, or abduction of a person enacted by the government
and refusing to disclose the fate or whereabouts of the person concerned and refusal to
acknowledge the deprivation of liberty which places such persons outside the protection
of the law.
Any member of the immediate family (spouse, children, and parents), any
ascendant, descendant or collateral relative of the aggrieved party, as well as any
concerned citizen, organization, association, or institution may file the petition for
necessary action in court.
Since the danger of the aggrieved party in initiating a petition for the writ of
amparo is imminent, the court provides the party interim reliefs for their safety. One of

them is the court may order a Temporary protection order. The court, justice, or judge,
upon motion or moto proprio, may order that the petitioner or the aggrieved party and
any member of the immediate family be protected in a government agency or by an
accredited person or private institution capable of keeping and securing their safety. If
the petitioner is an organization, association, or institution, the protection may be
extended to the officers involved. Another is the Inspection Order. In this relief, the court
may order any person in possession or control of a designated land or other property to
permit entry for the purpose of inspecting, measuring, surveying, or photographing the
property or any relevant object or operation thereon. Lastly, there is the Production
Order. The court may order any person in possession, custody, or control of any
designated documents, papers, books, accounts, letters, photographs, objects, or
tangible things, or objects in digitized or electronic form which constitute or contain
evidence relevant to the petition or the return to produce and permit their inspection,
copying, or photographing by or on behalf of the movant. These interim reliefs are also
available to the respondent after due hearing.
Judgement of the court shall be rendered within ten days from the time the
petition is submitted for decision. The Supreme Court may appeal within five days and
may raise questions of fact or law or both.

Rule on the Writ of Habeas Data (A.M. No. 08-1-16-SC)

The writ of habeas data is a remedy available to any person whose right to
privacy in life, liberty or security is violated or threatened by an unlawful act or omission
of a public official or employee, or of a private individual or entity engaged in the
gathering, collecting or storing of data or information regarding the person, family, home

and correspondence of the aggrieved party. Similarly, any aggrieved part may file a
petition for the writ of habeas data. But in the cases of extralegal killigns and enforced
disappearances, the petition may be filed by any member of the immediate family of the
aggrieved party or any ascendant, descendant or collateral relative of the aggrieved
party within the fourth civil degree of consanguinity or affinity.

The written petition for a writ of habeas data should contain the following:
1. The personal circumstances of the petitioner and the respondent;
2. The manner the right to privacy is violated or threatened and how it affects the right to
life, liberty or security of the aggrieved party;
3. The actions and recourses taken by the petitioner to secure the data or information;
4. The location of the files, registers or databases, the government office, and the person
in charge, in possession or in control of the data or information, if known;
5. The reliefs prayed for, which may include the updating, rectification, suppression or
destruction of the database or information or files kept by the respondent.
6. Such other relevant reliefs as are just and equitable.

Similarly like the rule on the writ of amparo, the verified written return shall be filed
together with supporting affidavits within five working days and it shall contain the
following:
1.

The

lawful

defense

such

as

national

security,

state

secrets,

privileged

communications, confidentiality of the source of information of media and others

2. In case of respondent in charge, in possession or in control of the data or information
subject of the petition
3. Other allegations relevant to the resolution of the proceeding.

Failure to file a return shall mandate the court to proceed and hear the petition ex
parte, granting the petitioner such relief as the petition may warrant unless the court in
its discretion requires the petition to submit evidence. Making a false return or refusing to
make a return shall be punished by contempt.
The defense may invoke the characteristics of the information demanded by the
court to prevent it from being public. They are but only limited to subjects of national
security, state secrets, privilege communications, and confidentiality of the source of
information of media and others.

Change of Name (Rule 103)

There are certain instances in a persons life that would be the cause of a need
for the correction of ones name in the Local Civil registry. The grounds for the change of
name may be because it is tainted with dishonour as it may be ridiculous, consequence

of a change of status like that of a legitimated child, a sincere desire to adopt a Filipino
name to erase signs of former alienage as long as it is in good faith without prejudicing
anyone and, necessity to avoid confusion. It must not be purely on the grounds of being
misspelled or wrongly registered because it constitutes Rule 108 or the Cancellation or
Correction of Entries in the Civil Registry. If the person desires to change his name then
he must present proper reasons through presenting not only important information about
him but also his parents. Thus he can petition for his name under the assurance that he
has proper and reasonable cause as to the change of name. [Republic v. Belmonte, et
al., L-32600, Feb 26, 1988]
A person petitioning for the change of his name shall present this at the Court of
First Instance of the province of his residence or at the Juvenile and Domestic Relations
Court in the City of Manila. The contents of said petition are that the petitioner should be
a bona fide resident of the province, the cause for which the change of petitioners name
is sought and, the name asked for. The proceeding starts with a petition to change his
name then the Court order fixing the time and place of it. This should be published once
every week for three consecutive weeks in a newspaper of general circulation. After the
schedule of place and time, the hearing of the court commences. Lastly is the service of
judgement either granting or denying the petition as this is all based on the reasons of
the person.

Petition of Change of Name

Court order fixing the date and

place of the Hearing.
Publication of Court Order at a
newspaper of general circulation

Hearing on the petition

Judgement granting/denying the

petition of the change of name

Figure 103.1 Procedure for Change of name

Voluntary Dissolution of Corporations (Rule 104)
Under the Batas Pambansa Bilang 68 or also known the corporation code, a
corporation is defined as an artificial being created by the operation of law, having the
right of succession and the powers, attributes and properties expressly authorized by
law or incident to its existence. Rule 104 of the Revised Penal refers to the Voluntary
dissolution of corporations wherein purpose of a petition is for the dissolution of a
corporation. This shall be signed by a majority of the corporation, board of directors or
the officers managing the corporations affairs. This should be filed at the Court of First
Instance of the province where the corporation is located and must be published by a
newspaper of general circulation once every week for four (4) consecutive weeks. [B.P.
Blg. 68 or the Corporation Code; Regalado F., Remedial Law Compendium]

Judicial Approval of Voluntary Recognition of Minor Natural Children (Rule 105)

The filiation of illegitimate children is governed by Articles 172, 173 and 175 of
the Family Code whereas the petition for the judicial approval of a voluntary recognition
of a minor natural child shall contain the names and residence of the parents who
acknowledge the child, A record of birth of the child and any public or written document
signed by the parent/s regarding the filiation of the illegitimate child.
In case the absence of the preceding allegations, the evidences needed to
constitute the proof needed for the legitimate filiation are an open and continuous
possession of the status of the legitimate child and any other means mentioned in the
Rules of Court and other special laws. The same goes if it takes in effect of judicial
approval of the Rules of Court. Under Article 173 of the Family Code, A child may or
may claim the legitimacy throughout his lifetime through Article 175 which provides that
the establishment of the illegitimate filiation is the same way as how the legitimate
children prove the validity.

Constitution of Family Home (Rule 106)

Owning a family home is considered as one of the properties of the family and it
is the head of a family owning a house and the land which it is placed may be the one to
file a petition of its ownership at the Court of First Instance of the province or city where
the property is situated. The petition should also contain information like description of
property, its estimated value, an encumbrance, the names of those interested in the
property and the beneficiaries. An information that any of the beneficiaries reside in that
property is also needed. Before the effective time of the New Family Code, there should
have been a verified petition of a judicial constitution of the family in the property as

home. Now, it is no longer needed after the August 3, 1988 approval of the New Family
Code. (Juanita Ramos, et al. v. Danilo Pangilinan, et al., G.R. No. 185920, July 20,
2010)
A mortgagee is a person or organization, like that of a bank, which lends money
to someone for buying property. If a particular property is under fire, all the creditors,
mortgagees and all persons interested in it are to be notified through distributing copies
and publishing in a newspaper of general circulation the information about it once every
week for three consecutive weeks. Any petition filed by the family shall be approved and
their home saved if the propertys estimated value does not exceed twenty to thirty
thousand pesos and that no third person is prejudiced by it.
Absentees (Rule 107)
There is a rule when a person who is supposedly expected to administer his
property disappears without notice. An absentee is the one who disappears from his
domicile and his whereabouts being unknown and without having left an agent to
administer his property or the power of the agent has expired. The rule on absentees
assigns a person to take over the absentees' property via petition of appointment of the
court as long as the person is authorized if the period of absence is during the first two
years.
If the person who disappeared, still without any news since the receipt (after two
years if without an administrator or after five years if with an administrator), then the
remedy will be a petition for declaration of absence and appointment of administrator or
trustee. The said petition can be instituted by either the spouse if present, the heirs
instituted in a will, relatives who would succeed via the law of intestacy, or those who

have over the property of the absentee some right subordinated to the condition of his
death.
If the absence is beyond seven years (or four years under extraordinary
circumstances), then the absentee is considered dead for all intents and purposes
except for purposes of succession. For purposes of marriage, four years continuous
absence shall be sufficient for present spouse to remarry, and only two years under
extraordinary circumstance of marriage.

Cancellation or Correction of Entries in the Civil Registry (Rule 108)

Cancellation or Correction of Entries in the Civil Registry includes information on
birth, marriages, death, legal separations, judgements of annulments or marriage,
judgements declaring marriage void from the very beginning, legitimations, adoptions,
acknowledgements of natural children, naturalization, election, loss or recovery of

citizenship, civil interdiction, judicial determination of filiation, voluntary emancipation of a

minor and change of name. Any person interested in any act, event, order or decree
concerning the civil status of persons recorded in the civil registry are authorized to file a
petition. It can be filed in the RTC of the province where the corresponding civil
registrant is located.
Proceeding under this rule may be classified as summary or adversarial.
Summary is when the correction in question is a mere clerical error and adversarial is
where the rectification affects civil status, citizenship, or even nationality of a party or any
other substantial change. Take note that proceedings for the correction of entries should
not be considered as establishing one's status in a manner conclusively beyond dispute.
The status corrected would not have a superior quality for evidentiary purposes. There is
no increase or diminution of substantive right (Chiao Ben Lim vs. Zosa, L-40252, Dec.
29, 1986)

R.A. 9048 Clerical Error Act

Republic Act No. 9048 also known as the Clerical Error Act is one of the unique
cases of special proceedings. This is a law passed to amend Article 412 of the New Civil
Code. It is stated that No entry in a civil register shall be changed or corrected without a
judicial order, except for clerical or typographical errors and change of first name or
nickname which can be corrected or changed by the concerned city or municipal civil
registrar or consul general in accordance with the provisions of this Act and its
implementing rules and regulations. Clerical or typographical errors refers to the mistake
committed in the performance of clerical work in either writing, typing, copying, or
transcribing as entry in the civil register that is harmless. This includes misspelled
names, place of birth and the like which can be immediately corrected by reference to
other existing records. The initiation of the law removes the limitation of minor changes
(such as clerical errors) and corrections of all entries in the civil register by no longer
mandating it to comply with a judicial order.
Any person of legal age, having direct and personal interest in the correction of a
clerical or typographical error in an entry, and/or change of first name or nickname in the
civil register is an eligible person to file for correction. They may file in either the City or
Municipal Civil registrar or Consul General (if in a foreign country; nearest Philippine
Consulate)

III. Venue and Jurisdiction of Special Proceedings

Special Proceeding

Venue

Jurisdiction

Settlement of the Estate

Residence of the decedent MTC if the gross value of

or if the decedent is a non- the estate does not excee
resident, place where he P400,000 in Metro Manila
had an estate
RTC if the gross value of
the estate exceeds the
above amounts

Escheat

a. Person

dies

intestate leaving no
heir Resident of
the decedent or if
non-resident, in the
place where he had
an estate
b. Reversion where RTC
the land lies in whole
or in part
c. Unclaimed Balances
Act

where

dormant

the

deposits

are located
Appointment of Guardians

Where

the

minor

or Family Court (in case of

incompetent resides

Minors)
RTC, Regular Courts (in
case of incompetents)

Appointment of Trustees

Where the will was allowed

RTC

or where the property or

portion thereof affected by
the trust is situated
Domestic Adoption

Where the adopter resides

Family Court

Inter-Country Adoption

Where the adoptee resides Family Court or the Interif filed with the family court

Country Adoption Board

Rescission of Adoption

Where the adoptee resides

Family Court

Habeas Corpus

Where

the

detainee

is SC, CA, RTC, MTC in the

detained (if the petition is province or city in case

filed with the RTC)

there is no RTC Judge;

Sandiganbayan only in aid

of its appellate jurisdiction
Custody of Minors

Province

or

city

where Family Court

petitioner resides or minor

may be found
Habeas Data

Where

the

petitioner

or RTC;

respondent resides or that Sandiganbayan,

which has jurisdiction over

SC

when

CA,

the

or

action

the place where the data or cocerns public data files or

information

is

gathered government offices

collected or stored at the

option of petitioner
Amparo Proceedings

Where the thread act or RTC;

omission was committed or Sandiganbayan,
any of its elements occurred

CA,

or

SC or any justice thereof

Habeas Corpus in relation to Where the petitioner resides Family Court, CA, and SC
minor

or where the minor may be

found

Change of Name

Where the petitioner resides

RTC

Appointment

of Where the absentee resided RTC

Representative

of before his disappearance

Absentee/Declaration

of

Absence
Cancellation/Correction

of Where the corresponding RTC

Entries in the Civil Registries

Civil Registry is located

Petition for Declaration of Where

Nullity,

Annulment,

Separation

the

Legal respondent
residing

petitioner
has

for

at

or Family Court

been
least

months prior to the date of

filing,

in

case

of

non-

resident respondent, where

he may be found at the
election of the petitioner

Reference:
Remedial Law Compendium Volume II Seventh revised edition (special
proceedings, criminal procedure, evidence
by Florenz D. Regalado