provisions of the Civil Code on Surnames.

But
they shall principally use the surname of the
Father.

(2) Right to Receive Support:

(a) Reminder: Support of legitimate children is a
liability of the absolute community of property
or of the conjugal partnership of gains. If
the community property or the conjugal
partnership is insufficient to pay for such
support, the spouses shall be liable solidarily
liable for the same with their separate properties.

(3) Successional Rights:

(a) Compulsory heir: Legitimate children are
compulsory heirs, with respect to their legitimate
parents and ascendants and their legitime
consists of one-half of the hereditary estate of the
father and of the mother.
(b) Intestate heir: Legitimate children are intestate
or legal heirs of their parents and other ascen
Dants.

(4) Citizenship: On the matter of citizenship, it is a settled

rule that only legitimate children follow the citizenship
of the father. Under Article IV, Section 1(4) of the
1935 Constitution, the citizenship of a legitimate child
born of a Filipino mother and an alien father followed
the citizenship of the father, unless, upon reaching the
age of majority, the child elected Philippine citizenship.
The right to elect Philippine citizenship was recognized
24

CIVIL LAW REVIEWER

uant to the

in the 1973 Constitution when it provided that "those who elect Philippine citizenship pursuant to
provisions of the Constitution of nineteen hundred thirty-five are citizens of the Philippines."
Likewise this recognition by the 1973 Constitution was carried over to the 1987 Constitution
which states that “those born before January 17, 1973 of Filipino mothers, who elect Philippine
citizenship upon reaching the age of majority are Philippine citizens."
B.Illegitimate Children
(1) Right to Use Surname:
(a) Rule: Illegitimate children shall use the surname of the mother. 1182 As a rule, an
illegitimate child does not have right to use the father's surname.

(b) When illegitimate child acquires right to use father's surname: An illegitimate child acquires
the right to use the surname of his/her illegitimate father if:

i. If his/her filiation has been expressly recognized by the father through the record
of birth appearing in the civil register; or When an admission of paternity is made by
the father in a public document or private
handwritten instrument.

(c) Reminders:
In Grande u. Antonio 1154 the Court clarified that Article 176 of the FC, as amended by
R.A. No. 9255, gives illegitimate children the right to decide if they want to use the surname of
their father or not. It is not the father or the mother who is granted
by law the right to dictate the surname of

their illegitimate children. The use of the

word "may" in the provision readily shows
that an acknowledged illegitimate child is
under no compulsion to use the surname
of his illegitimate father. Hence, a father
cannot compel the use of his surname by his
illegitimate children upon his recognition
of their filiation. In the same case, the
Court declared void the provision of the
Implementing Rules and Regulations (IRR)
of R.A. No. 9255, Office of Civil Registrar
General (OCRG) Administrative Order No.
1, Series of 2004, issued by the National
Statistics Office-Office of the Civil Registrar
General, which makes it mandatory on
the part of illegitimate children to use the
surname of their father upon recognition.
While 176 of the FC, as amended by R.A. No.
9255, does not explicitly state that the pri
vate handwritten instrument acknowledg
ing the child's paternity must be signed by
the putative father, this provision, however,
must be read in conjunction with related
ognition by the father must bear his signa
provisions of the FC which require that rec
ture, specifically Articles 172 and 175 of the
same Code. That a father who acknowledges
paternity of a child through a written in
strument must affix his signature thereon is
clearly implied in Article 176 of the Family
Code.1155
If the admission of paternity is made in
private handwritten instrument which was
child be allowed to make use of the father's
not signed by the father, may the illegitimate
Dela Cruz v. Gracia, the Court allowed the
surname on the basis of such instrument? In
child to use the father's surname on the basis

of such private handwritten instrument considering that there are other evidence
to prove paternity and filiation. In the same case, the Court adopted the following rules
respecting the requirement of affixing the signature of the acknowledging parent in any
private handwritten instrument wherein an admission of filiation of a legitimate or
illegitimate child is made:

a) Where the private handwritten instrument is the lone piece of evidence submitted to prove
filiation, there should be strict compliance with the requirement that the same must be signed by
the acknowledging parent; and

b) Where the private handwritten instrument is accompanied by other relevant and competent
evidence, it suffices that the claim of filiation therein be shown to have been made and
handwritten by the acknowledging parent as it is merely corroborative of such other evidence.

(2) Parental Authority:

(a) Rule: Illegitimate children shall be under the parental authority only of their mother, and
this rule applies whether or not the illegitimate father admits paternity.

Effect of recognition: The recognition of paternity by the illegitimate father does not entitle him
to have parental authority and custody over illegitimate children. Such recognition could be
ground for ordering the illegitimate father to give support to, but not custody of, the child.
But an illegitimate father is entitled to visitation rights.

(b)

1157 Art 17
227

PART ONE
PERSONS & FAMILY RELATIONS

(3) Support:

(a) Reminder: Support of illegitimate children of either spouse is the liability of the exclusive or
separate property of the illegitimate parent concerned. However, in case of absence or
insufficiency of exclusive property of the parent concerned, the same shall be advanced
by the absolute community. In conjugal partnership, the support of illegitimate children
can be charged over the assets of the conjugal partnership in case of absence or insufficiency
of property of the illegitimate parent only if the other responsibilities of the conjugal partnership
mentioned in Article 121 of the Family Code have already been covered.

(4) Successional Rights:

(a) Compulsory heir: Illegitimate children are compulsory heirs and the legitime of each
illegitimate child shall consist of one-half of the legitime of a legitimate child.

(b) Intestate heir: Illegitimate children are intestate or legal heirs of their illegitimate parents.

(5) Citizenship: Only legitimate children follow the citizenship of the father and that illegitimate
children are under the parental authority of the mother and follow her nationality. Moreover, it
was likewise ruled that an illegitimate child of a Filipina need not perform any act to confer upon
him all the rights and privileges attached to citizens of the Philippines; he automatically
becomes a citizen himself.

[Title VI Paternity and Filiation]

[Chapter 4: Legitimation]
(Arts. 177-182, FC)

101) Legitimation
(1) Concept: Legitimation is the process provided under our law where the status of a child
conceived and born out of wedlock is improved, by operation of law, from illegitimacy to that of
legitimacy by the mere subsequent marriage of the parents.

(2) Requisites:
i) The child is conceived and born outside of wedlock;
ii) At the time of conception of the child, his/her parents were not disqualified by any impediment
to marry each other, or were so disqualified only because either or both of them were below 18
years of age;
iii) After the birth of the child, his/her parents subsequently got married; and
iv) Such marriage is not void ab initio.

Reminders:

In legitimation, the reckoning point is the period of conception. It is the situation

of the parents at the time of the child's conception which is material without regard
to the parent's situation at the time of the child's birth. Thus, if the parents were
disqualified to marry each other at the time the child's conception for reasons other
than the parent's age, the child cannot be

116 Arts. 177, 178 and 179, FC.

11 Art. 177, FC.
117°Art. 177, as amended bu

legitimated, even if such impediment is no longer existing at the time of the child's birth.
But if at the time of the child's conception, the parents were not disqualified by any
impediment to marry each other, or were so disqualified only because either or both of
them were below 18 years of age, the child can be legitimated by the subsequent marriage
of the parents even if an impediment existed at the time of the child's birth.
The subsequent marriage of the parents must not be void ab initio, otherwise, legitimation
shall not take place. If the marriage is simply voidable, the annulment of such marriage
shall not affect the legitimation because voidable marriage produces legal effects.

In the same way, even if the marriage of the parents is void ab initio but if the ground for
the nullity of the marriage is either Article 36 or 53 of the Family Code, it is submitted
that legitimation also takes place because the intent of the Family Code is to make the
children of these void marriages legitimate.

(3) Effects of Legitimation:

(a) Child becomes legitimate: Prior to the marriage of the parents, the status of the child is
illegitimate. Upon the celebration of the marriage between the child's parents, the status of the
child is ipso jure raised to legitimacy and the child becomes entitled to the same rights being
enjoyed by legitimate child. 1175 Note that legitimation takes place ipso jure by the mere
subsequent marriage of the parents without need of any additional act on the part either of the
parents or of the child.

(b) Effects retroactive: Upon the celebration of the marriage between the child's parents, the
effects of legitimation shall retroact to the time

1174 Art. 178, FC.

117510T
230

CIVIL LAW REVIEWER

of the child's birth. If the child dies prior to the marriage of his/her parents, the subsequent
marriage of his/her parents shall nonetheless benefit his/her descendants.

(4) Action to Impugn Legitimation:

(a) Who may impugn: Only those who are prejudiced in their rights as a result of the legitimation
may impugn the same.1178 The rights referred to are successional rights. Hence, only those
whose successional rights are directly affected may impugn the legitimation that took place.

(b) Prescriptive period: Five years from the time of death of either of the parents of the child,"in
from whom the plaintiff/petitioner is a compulsory or
intestate heir.

(c) Grounds: For purposes of impugning the legitimation of a child, the inquiry is limited to the
issue of whether or not the following requisites of legitimation were complied with: (1) the child
was conceived and born outside of wedlock; (2) at the time of the child's conception, his/her
parents were not disqualified by any impediment to marry each other, or even if so disqualified,
the sole reason for disqualification was because either or both of the parents were below 18
years of age at that time;(3) the parents of the child subsequently marry each other; and (4)
such marriage is valid, or, at least, voidable. If the foregoing requisites are not complied with,
then legitimation does not take place.

[Title VII Adoption]

by the Domestic Adoption Act of
1998 and the Inter-Country
(Arts. 183 193, FC, as amended
Adoption Act of 1995)

231

PART ONE
PERSONS & FAMILY RELATIONS

Adoption, In General
(1) Concept, Explained:
(a) Definition: Adoption is defined as the process
of making a child, whether related or not to the
adopter, possesses in general, the rights accorded
to a legitimate child. It is a juridical act,
proceeding in rem which creates between two
persons a relationship similar to that which
results from legitimate paternity and filiation.
(b) Reminders:
Since adoption is essentially a juridical act,
ward (ampon), without the benefit of formal
(judicial adoption), is neither a compulsory
nor a legal heir.
Simulation of birth, which is the tampering
of the civil registry to make it appear in the
birth records that a certain child was born
mother, does not likewise produce the
to a person who is not his/her biological
legal effects of adoption.
in rem and the court does not acquire
Adoption is in the nature of proceedings
jurisdiction over the case if the notice by
publication does not carry the true name of
the child to be adopted. Under the new
rules on Domestic Adoption, the registered
name of the adoptee in the birth certificate
and the names by which the adoptee has
been known are required to be stated in the
caption of the petition for adoption.

1180 In the Matter of the Adoption of Stephanie Nathy Aston

Domestic Adoption and Inter-Country Adoption

Applicability

Domestic Adoption Inter-Country Adoption

Applies to domestic adoption of Applies to adoption of a Filipino

Filipino children, where the entire
adoption process beginning from
the filing of the petition up to the
issuance of the adoption decree
takes place in the Philippines.
child in a foreign country, where
the petition for adoption is filed,
the supervised trial custody is un
undertaken and the decree of adop
tion is issued outside of the Philip
pines.

DAA applies if: ICAA applies if:

1) The adopter is a Filipino citi 1) The adopter is a Filipino citi
zen permanently residing in the zen who is permanently reside
 Philippines; or ing abroad; or
A foreigner who has been re A foreigner who does not sat
siding in the Philippines for at is the residency requirement
least three continuous years under the DATA but is qualified
to adopt under the ICAA.
prior to the filing of the peti
tion for adoption and such res
idency is maintained until the
adoption decree is entered.

*** Waiver of Residency Requirement: The residency require.

ment for foreigners under the Domestic Adoption Act may
waived in the following instances:

i) Adopted is a former Filipino citizen who seeks to

adopt a relative within the 4th degree of consent
genuinity or affinity;
ii) Adapter seeks to adopt the legitimate son/
daughter of his/her Filipino spouse; or
iii) Adapter is married to a Filipino citizen and seeks
to adopt jointly with his/her spouse a relative of
the latter within the 4th degree of consanguinity
or affinity.

(3) Rules of Preference in Adoption:

(a) Preference in favor of extended family: It is the
poncy of the State to ensure that every Filipino
child shall remain, as much as possible, under the
care and custody of his/her parents). If there is
real need for adoption, it is likewise the policy
of the State to prefer adoption by the child's
extended family over adoption by an unrelated
person. 1189
(b) Preference in favor of domestic adoption: It is a
basic policy of the State to encourage domestic
adoption of a Filipino child for the purpose
of preserving the child's identity and culture.
Hence, inter-country adoption shall be resorted to
only when domestic adoption of the child is not
available 1190 and intercountry adoption is in the
best interest of the child. 1191
(4) Who May Be Adopted:

Domestic Adoption Inter-Country Adoption

available for adoption after the available for adoption after

fact of abandonment or neglect fact of abandonment or negl
has been proven through the has been proven through the
submission of pertinent docu submission of pertinent docu
ments, or one who was volun mens, or one who was volun
tarily committed by his/her tarily committed by his/her
parent(s) or legal guardian. The child may parent(s) or legal guardian.
either be The child may either be
person below 18 years of age or person below 18 years of age or
person over 18 years of age person over 18 years of age
but is unable to fully take care but is unable to fully take care
of him/herself or protect him of him/herself or protect him
self/herself from abuse, neglect, self/herself from abuse, neglect,
cruelty, exploitation, or dis cruelty, exploitation, or dis
crimination because of physical tion.
or mental disability or condi crimination because of physical
tion. or mental disability or condi
2) The legitimate son/daugh
ter of one spouse by the other
spouse. The adoptee may
even be of legal age if he or she
is the child by nature of the
adopter's spouse.
3) An illegitimate son/daughter
prove his/her status to that of
by a qualified adopter to im
legitimacy. If the adopter
seeking to adopt his/her own il
legitimate child is married, he/
other spouse but the latter need
she must get the consent of the
not join in the adoption. If it
is the other spouse who seeks to
adopt the illegitimate child of
the other spouse, the spouses
are required to jointly adopt. In
any case, the illegitimate child
may be adopted even if he or
she is already of legal age. 1200
 4)

A person of legal age if, prior to

the adoption, said person has
been consistently considered
and treated by the adopters)
as his/her own child since mi
nority. 1201
5) A child whose adoption has
been previously rescinded. 1202
6) A child whose biological or
adoptive parent(s) has died. 1203
In this case, the law requires
that no adoption proceedings
shall be initiated within six
months from the time of death
of said parent(s).1204
Reminder: Our laws do not prohibit
from adopting one another. 1205
relatives, either by blood or affinity,

CIVIL LAW REVIEWER

Available for Adoption":(1) adoption of an illegitimate child by any of his/her biological parent; (2)
adoption of a child by his/her step-parent; or (3) adoption of a child by a relative within the fourth
degree of consanguinity or affinity.

2) Under Section 8 of R.A. No. 9523, the certification that a child is legally available for adoption
shall be issued by the DSWD in lieu of a judicial order, thus making the entire process
administrative in nature. Note that under Section 8(a) of the DAA, the declaration that a child is
legally available for adoption can be had either judicially or administratively. Section 8(a) was
expressly repealed, however, by R.A. No. 9523.Under the amendatory law, the process of
declaring a child legally available for adoption has been made entirely administrative.

3) The certification issued by the DSWD, shall be, for all intents and purposes, the primary
evidence that the child is legally available in a domestic adoption proceeding, as provided in
R.A. No. 8552 (Domestic Adoption Act) and in an inter-country adoption proceeding, as
provided in R.A. No. 8043 (Inter-Country Adoption Act).

(5) Who May Adopt:

(ii) In Imbong v. Ochoa, Jr., the Court declared unconstitutional Section 7 of R.A. No. 10354.
otherwise known as the Responsible Parenthood and Reproductive Health Act of 2012 (RH Law
and the corresponding provision in the RH-IRR insofar as they, among others, allow
minor-parents or minors who have suffered a miscarriage access to modern methods of family
planning without written consent from their parents or guardian/s. The Court reasoned that it is
an affront to the constitutional mandate to protect and strengthen the family as an inviolable
social institution,as the State cannot replace the child's natural mother and father when it comes
to providing the child's needs and comfort. Thus, to say that their consent is no longer relevant
is anti-family.

(iii) Section 23(a)(2)(ii) of the RH Law was likewise declared unconstitutional because it
effectively limits the requirement of parental consent to "only in elective surgical procedures,”
and denies the parents their right of parental authority in cases where what is involved are
"non-surgical procedures." According to the Court, the parents should not be deprived of their
constitutional right of parental authority for to deny them of this right would be an affront to the
constitutional mandate to protect and strengthen the family.

Reproductive Health Law; Parental Authority: View that authority that is exercised by parents
over their unemancipated children includes the right and duty to enhance, protect, preserve, and
maintain their physical and mental health and to represent them in all matters affecting their
interests.-The authority that is exercised by parents over their unemancipated children includes
the right and duty to enhance, protect, preserve, and maintain their physical and mental health
and to represent them in all matters affecting their interests. The authority exercised by parents
over their unemancipated children is terminated, inter alia, upon emancipation of the child.
Emancipation takes place upon attainment of the age of majority, which commences at the age
of eighteen years.

Same; Same; Parental Consent: View that the last proviso of Section 7 restricts the access of
minors to modern methods of family planning; It requires a written parental consent before a
minor may be allowed access thereto.-Section 7 seeks to make modern family planning
methods more accessible to the public. The provision mandates that no person shall be denied
information and access to family planning services, whether natural or artificial. However, the
last proviso of Section 7 restricts the access of minors to modern methods of family planning; it
requires a written parental consent before minor may be allowed access thereto. This is but
recognition of the parental authority that is exercised by parents over the persons of their
unemancipated children. That it is both a duty and a right of the parents to protect the physical
health of their unemancipated children. However, Section 7 provided an exception to the
requirement of written parental consent for minors. A minor who is already a parent or has had a
miscarriage may be allowed access to modern methods of family planning notwithstanding the
absence of a written parental consent therefor. This runs afoul of the natural and primary right
and duty of parents in the rearing of their children, which, under Section 12, Article II of the
Constitution, should receive the support of the government.
Same; Same; Same; View that there is no cogent reason to require a written parental consent
for a minor who seeks access to modern family planning methods and dispense with such
requirement if the minor is already a parent or has had a miscarriage. Under the Family Code,
all minors, generally, regardless of his/her circumstances, are still covered by the parental
authority exercised by their parents. -There exists no substantial distinction as between minor
who is already a parent or has had a miscarriage and a minor who is not yet a parent or never
had a miscarriage. There is no cogent reason to require a written parental consent for a minor
who seeks access to modern family planning methods and dispense with such requirement if
the minor is already a parent or has had a miscarriage. Under the Family Code, all minors,
generally, regardless of his/her circumstances, are still covered by the parental authority
exercised by their parents. That a minor is already a parent or has had a miscarriage does not
operate to divest his/her parents of their parental authority, such circumstances do not
emancipate a minor.

Same; Same; Constitutional Law; View that considering that the last proviso of Section 7
operates to divest parents of their parental authority over the persons of their minor child who is
already parent or has had a miscarriage, the same must be struck down for being contrary to
the natural and primary right and duty of parents under Section 12, Article II of the Constitution.
It is cardinal with us that the custody, care and nurture of the child reside first in the parents,
whose primary function and freedom include preparation for obligations the State can neither
supply nor hinder. Most children, even in adolescence, simply are not able to make sound
judgments concerning many decisions, including their need for medical care or treatment.
Parents can and must make those judgments. Considering that the last proviso of Section 7
operates to divest parents of their parental authority over the persons of their minor child who is
already a parent or has had a miscarriage, the same must be struck down for being contrary to
the natural and primary right and duty of parents under Section 12, Article II of the Constitution.

(iii) Of good moral character;

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

(v) Emotionally and psychologically capable of caring for children;

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

(vii) At least 16 years older than the adoptee BUT this latter requirement may be waived
(a) the adopter is the biological parent of the adoptee; or
(b) the adopter is the spouse of the adoptee's parent; and

(viii) Permanent resident of the Philippines.

(iii) Has undergone the appropriate counseling from an accredited counselor in country of
domicile;
(iv) Has not been convicted of a crime involving moral turpitude;

(v) Eligible to adopt under Philippine law;

(vi) In a position to provide the proper care and support and to give the necessary moral values
and example to all his children, including the child to be adopted;

(vii) Agrees to uphold the basic rights of the child as embodied under Philippine laws, the U.N.
Convention on the Rights of the Child, and to abide by the rules and regulations issued to
implement the provisions of the ICAA;

(viii) Residing in a country with whom the Philippines has diplomatic relations and whose
government maintains similarly authorized and accredited agency and that adoption is allowed
that country;

(ix) Possesses all the qualifications and none of the disqualifications provided in the ICAA and in
other applicable Philippine laws;

(x) At least 27 years of age at the time of the application; and

(xi) At least 16 years older than the child to be adopted at the time of application UNLESS:
(a) Adopter is the parent by nature of the child to be adopted; or
(b) Adopter is the spouse of the parent by nature of the child to be adopted.

B. Aliens:
Qualifications: Same qualifications for Filipino nationals and in addition
(i) His/her country has diplomatic relations with the Republic of the Philippines;

(ii) His/her government allows the adoptee to enter his/her country as his/her adopted
son/daughter;

(iii) Has been living in the Philippines for at least three continuous years prior to the filing
of the application for adoption and maintains such residence until the adoption decree is
entered; and

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

B. Aliens:

(i) At least 27 years of age at the time of the application;

(ii) At least 16 years older than the child to be adopted at the time of application UNLESS the
adopter is the parent by nature of the child to be adopted or the spouse of such parent;

(iii) Has the capacity to act and assume all rights and responsibilities of parental authority under
his national laws;

(iv) Has undergone the appropriate counseling from an accredited counselor in his/her country;

Reminder: The requirements on

residency and certification of the
alien's qualification to adopt in his/
her country may be waived if:
(a) A former Filipino citizen
seeks to adopt a relative
within the 4th degree of
consanguinity or affinity;
(b) One seeks to adopt the le
gitimate son/daughter of
his/her Filipino spouse;

(c) One who is married to a

Filipino citizen and seeks
to adopt jointly with his/
her spouse a relative
within the 4th degree of
consanguinity or affinity
of the Filipino spouse. 1213