Halila Sudagar

Family Code

1. Under
the
Family
Code,
foreigners, subject to certain
exceptions,
are
already
prohibited from adopting.
NOTE: The court may allow
aliens to adopt under the Child
and Youth Welfare Code.

RA 8043(Inter-Country Adoption Act of RA 8552 Republic Act

1995),
Domestic Act of 1998.1

8552

1. Republic Act 8043 (InterCountry Adoption Act of

1995), where it governs aliens
or
Filipinos
permanently
residing abroad qualified to
adopt Filipino children.
RA
8043 only applies to aliens or
Filipinos permanently residing
abroad.

2. Common RA 8552
The first is that the adopter must be at
least 16 years older than the adopted,
subject to certain exceptions:
a. adopter is the biological parent
b. spouse of such parent

Common- Family Code

The first is that the adopter must be at
least 16 years older than the adopted,
subject to certain exceptions:
a. adopter is the biological parent
b. spouse of such parent

This (2nd) is under RA 8552 because

under the Family Code the spouse of
the legitimate parent of the person to
be adopted. Under the Family Code
spouse of the legitimate parent of the
person to be adopted.

The word legitimate is no longer

found in RA 8552. It states spouse
of such parent.

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Other common provision is if married,
husband and wife must jointly adopt.

Other common provision is if married,

husband and wife must jointly adopt.

The exceptions under the Family Code

are the following:
a. when one spouse seeks to
adopt his own illegitimate child
b. when one spouse seeks to
adopt the legitimate child of the
other.

Under RA 8552:
a. if one spouse seeks to adopt
the legitimate child of the other
b. when one spouse his or her
illegitimate spouse provided the
other signifies his consent
thereto
c. (not found in the Family Code) if
both spouses are legally
separated.
Then, there is no need for a joint
adoption.
Only the prospective
adopter may file the petition for
adoption

Who will adopt?

But under RA 8043, aliens or Filipinos The same hold true with RA 8552.
Under the Family Code, Filipinos permanently residing abroad at least
- Under the Family Code and the
with full civil capacity and legal rights.
27 years of age.
Domestic Adoption Act, at least
- Under the Family Code and the
- Here (RA 8043), the prospective
16 years older. There is no age
Domestic Adoption Act, at least
adoptive parent, whether a
set
16 years older. There is no age
foreigner
or
a
Filipino
set
permanently residing abroad,
must be at least, not only 16
years older, but at least 27
years of age.
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Under the Family Code, aliens are

generally not qualified to adopt, subject
to certain exceptions. Under Article
184, paragraph 3:

But under RA 8552, aliens are already

qualified
to
adopt
subject
to
requirement that must be living (in the
Philippines) for 3 continuous years
prior to the filing of the petition for
adoption
and
maintaining
such
residence until the decree is entered.
The exception to that requirement
of 3-year continuous residency are the
following:
a. a former Filipino citizen who
seeks to adopt a relative within
the 4th degree of consanguinity
or affinity
Under the Family Code, it
merely says
consanguinity.
Here, it includes a relative by
affinity up to the 4th degree
b. one who seeks to adopt the
legitimate child of his Filipino
spouse
c. If one is married to a Filipino
citizen and seeks to adopt
jointly with his/her spouse a

ARTICLE 184. The following persons

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

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relative a relative within the 4th
degree of consanguinity or
affinity of the Filipino spouse.

Who will be adopted?

(Family Code) The general rule is
only minors, subject to certain
exceptions:
a. Child by nature
b. The
person
had
been
consistently treated by the adopter as
his/her
own
child
during
minority.
- In both laws, the Family Code and
the Domestic Adoption Act, minors

Under
child.
below
below.
-

RA 8043, only a legally free In Domestic Adoption Act, any person

Child under RA 8043 means below 18 administratively or judicially
15 years of age. So, 14 or declared available for adoption. Those
may be adopted.
But here (RA 8043), the child is
- In both laws, the Family Code
a child below 15 years of age.
and the Domestic Adoption Act,
minors

Who shall give consent in writing?

The same provision found in the
Family Code is provided for under the
Domestic Adoption Act. The consent is
only in writing both in the Family
Code and RA 8552.

But in RA 8043, this requires that the

written consent must be in the form of
a sworn statement. The consent of the
children above 10 years of age must
be in the form of a sworn statement.

ARTICLE 188.
The
written
consent of the following to the adoption
shall be necessary:
(1) The person to be adopted, if ten

Who shall give consent in writing?

The same provision found in the
Family Code is provided for under the
Domestic Adoption Act. The consent is
only in writing both in the Family
Code and RA 8552.
ARTICLE 188.
The
written
consent of the following to the adoption
shall be necessary:
(1) The person to be adopted, if ten

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years of age or over;
(2) The parents by nature of the child,
the legal guardian, or the proper
government instrumentality;
(3) The
legitimate
and
adopted
children, ten years of age or over, of
the adopting parent or parents;
(4) The illegitimate children, ten years
of age or over, of the adopting
parent, if living with said parent and
the latter's spouse, if any; and
(5) The spouse, if any, of the person
adopting or to be adopted.

years of age or over;

(2) The parents by nature of the child,
the legal guardian, or the proper
government instrumentality;
(3) The
legitimate
and
adopted
children, ten years of age or over, of
the adopting parent or parents;
(4) The illegitimate children, ten years
of age or over, of the adopting
parent, if living with said parent and
the latter's spouse, if any; and
(5) The spouse, if any, of the person
adopting or to be adopted.

Where the petition shall be filed?

In RA 8043, it can be filed here in the In both cases in Family Code as well
Philippines before the Family Court or as RA 8552, with the Family Court.
In both cases in Family Code as with the Inter-Country Adoption Board,
well as RA 8552, with the Family through an intermediate agency in the
Court.
country of the prospective parent.
Under RA 8043, there are 2 options
available to the adoptive parent. The
petition can be filed before our Family
Courts or it can be filed before the
Inter-Country Adoption Board.

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What are the effects?
Under the Family Code:
a. the adopted becomes the
legitimate child of the adopter
b. parental authority of the parents
by nature is terminated
and is now vested with the adoptive
parents

Under RA 8552:
a. the parental authority of the
parents by nature is terminated
and is now vested upon the
adoptive parents
b. the legitimate child of the
adopter is entitled to all the
rights and obligations provided
by law to legitimate children
without discrimination of any
kind
c. in
legal
and
intestate
succession, the adopter and the
adopted shall have reciprocal
rights of succession without
distinction
from
legitimate
filiation.
This is not true under RA 8552. The
person given the right to file a petition
for rescission of the decree of adoption
is only the adopted child. The adoptive
parent is no longer given the right to
rescind.
- At most, as in the case of
LAHOM vs. SIBULO (406
SCRA 135), the recourse of the
adoptive parent is to disinherit
the
child
for
purposes
mentioned under the law on

Rescission
Under the Family Code, both the
adoptive parent and the adopted child
may file a petition for rescission of the
decree of adoption.

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succession.

There is this provision under Section

13 of RA 8552.
SECTION 13.
Decree
of
Adoption. If, after the publication of
the order of hearing has been
complied with, and no opposition has
been interposed to the petition, and
after consideration of the case studies,
the qualifications of the adopter(s), trial
custody report and the evidence
submitted, the court is convinced that
the petitioners are qualified to adopt,
and that the adoption would
redound to the best interest of the
adoptee, a decree of adoption shall
be entered which shall be effective
as of the date the original petition
was filed. This provision shall also
apply in case the petitioner(s) dies
before the issuance of the decree of
adoption to protect the interest of the
adoptee. The decree shall state the
name by which the child is to be
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known.
This means that it has retroactive
effect. When shall it retroact? As of
the date of the filing of the original
petition. So, there is that retroactive
effect.
What is the meaning of that
retroactive effect? This was answered
in the case of:
TAMARGO vs. COURT OF APPEALS
(June 3, 1992)
The decree of adoption was
already issued by the court. But the
adopting parents, at the time the
adoption was issued, were not in the
Philippines. They were in abroad. The
custody of the child has to remain with
the parents by nature.
While staying with the parents by
nature, the child committed an act,
which gave rise to damages.
Who shall be liable for the
damages caused by the act of the
child?
The parents by nature said that it
should be the adopting parents
because of the retroactive effect of that
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decree of adoption.
Are the parents by nature correct?
The Supreme Court said in the
case of Tamargo, we do not consider
that retroactive effect may be given to
the decree of adoption so as to impose
a liability upon the adopting parents
accruing at a time when adopting
parents had no actual or physically
custody over the adopted child.
Retroactive affect may perhaps be
given to the granting of the petition for
adoption where such is essential to
permit the accrual of some benefit or
advantage in favor of the adopted
child. Put a little differently, no
presumption of parental dereliction on
the part of the adopting parents could
have arisen since Adelberto was not in
fact subject to their control at the time
the tort was committed.
Inasmuch that there was absence
of actual or physical custody, the
adoptive parent cannot be held liable
for damages. The one answerable for
it would be the parents by nature
inasmuch as they were the one who
had actual and physical custody over
the adopted child.
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One of the provisions under the Family

Code on Adoption, which according to
most authors, has not been carried over to
RA 8552 is Article 190.
Article 190 refers to the adopted child
dying intestate. So, how shall the estate
of the adopted child be partitioned?

Section 18 of RA 8552 does not give the

adopter the right of representation
because it does not involve a reciprocal
right between a parent and a child. There
is no right of representation.
RA 8552 SECTION 18.
Succession.
In legal and intestate succession, the
adopter(s) and the adoptee shall have
reciprocal rights of succession without
distinction
from
legitimate
filiation.
However, if the adoptee and his/her
biological parent(s) had left a will, the law
on testamentary succession shall govern.

ARTICLE 190. Legal

or
intestate
succession to the estate of the adopted
shall be governed by the following rules:
(1) Legitimate and illegitimate children and
descendants
and
the
surviving
spouse of the adopted shall inherit
from the adopted, in accordance
with
the ordinary rules of legal or intestate
succession;
(2) When the parents, legitimate or
illegitimate, or the legitimate ascendants
of the adopted concur with the adopters,
they shall divide
the entire estate,
one-half to be inherited by the parents or
ascendants and the other half, by the
adopters;
Take note that if the adopted child is
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survived by ascendants, the ascendants
must be legitimate. With the parents,
there is no question whether legitimate or
illegitimate.
But if ascendants or
grandparents, it must be legitimate.
(3) When the surviving spouse or the
illegitimate children of the adopted
concur with the adopters, they shall
divide the entire estate in equal
shares, one-half to be inherited by the
spouse or the illegitimate
children
of
the adopted and the other half, by the
adopters;
(4) When the adopters concur with the
illegitimate children and the surviving
spouse of the adopted, they shall divide
the entire estate in
equal shares, onethird to be inherited by the illegitimate
children,
one-third by the surviving
spouse, and one-third by the adopters;
(5) When only the adopters survive, they
shall inherit the entire estate; and
(6) When only collateral blood relatives of
the adopted survive, then the
ordinary rules of legal or intestate
succession shall apply.
That is one provision not carried over
by RA 8552.

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