Beruflich Dokumente
Kultur Dokumente
100
SPECIAL PROCEEDINGS
SPECIAL PROCEEDINGS - A remedy by
which a party seeks to establish a status,
a right or a particular fact. (Rule 1,
Section 3)
JURISDICTION
GENERAL RULE: Regional Trial Court
EXCEPTION: MTC has jurisdiction in the
following cases:
1. Probate proceedings whether testate
or intestate where the gross value of
the estate does NOT exceed
P300,000 or P400,000 in Metro
Manila, EXCLUSIVE of interest,
damages
of
whatever
kind,
attorneys fees, litigation expenses
and costs.
2. DELEGATED JURISDICTION
in Cadastral and Land
Registration Cases covering lots
where there is no controversy or
opposition or contested lots where
the value of which does not exceed P
100T.
appeal is taken to the CA, not
to the RTC since MTC is equal to RTC
in this instance.
3. SPECIAL JURISDICTION
petitions for writ of Habeas
Corpus in case of absence of RTC
judges.
SC and CA have original jurisdiction
over Habeas Corpus cases, concurrent
with the RTC.
ORDINARY
ACTION
SPECIAL
PROCEEDING
to protect or
enforce a right or
prevent or redress a
wrong
involves the
establishment of the
right, status or fact
involves two or
more parties
governed by
ordinary rules
governed by special
rules supplemented
supplemented by
special rules
by ordinary rules
heard by courts of
general jurisdiction
heard by courts of
limited jurisdiction
Initiated by a
pleading and parties
respond through an
answer
Initiated by means of
a petition and parties
respond by means of
an opposition
IN
SETTLEMENT
Issuance of Letters
Testamentary/Administration
(A special administrator may be
appointed) (Rule 77-80)
Filing of Claims
(Rule 86)
Payment of Claims
Sale/Mortgage/Encumbrance
of Properties of the Estate
REMEDIAL L AW COMMITTEE
CHAIRPERSON: Jinky Ann Uy ASST . CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
101
REMEDIAL L AW COMMITTEE
CHAIRPERSON: Jinky Ann Uy ASST . CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
102
EXTRAJUDICIAL
SETTLEMENT
BY
AGREEMENT BETWEEN HEIRS (Sec.1)
Requisites:
A. Substantive
1. The decedent left a) no will
b) no debts
2. The heirs are all of age or the
minors are represented by their
judicial or legal representatives
duly authorized for the purpose
B. Procedural
1. Division of estate must be in a
PUBLIC INSTRUMENT or by
AFFIDAVIT of ADJUDICATION in
the case of a sole heir.
2. Filed with proper Registry of
Deeds
3. Publication of notice of the fact
of extrajudicial settlement once
a week for 3 CONSECUTIVE WKS.
4. Bond filed equivalent to the
value of PERSONAL property.
The bond is required only when
personalty is involved or the real estate
is subject to a lien in favor of creditors,
heirs or other persons for the full period
of 2 years from such distribution and
such lien cannot be substituted by a
bond.
The bond is the value of the personal
property certified by the parties under
oath and CONDITIONED upon payment of
just claims filed under Sec. 4, Rule 74.
BOND
1. equivalent to the value of
personal property
2. certified by parties under oath
by an affidavit
3. conditioned upon the payment of
just claims filed under Sec. 4.
If they cannot agree to the manner of
partition among themselves, they may
resort to Ordinary Action of Partition. If
despite the institution of such action
they subsequently arrived at an
agreement, they may enter into the
corresponding stipulation and register
REMEDIAL L AW COMMITTEE
CHAIRPERSON: Jinky Ann Uy ASST . CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
103
may
be
EXTRAJUDICIAL
SETTLEMENT
JUDICIAL
SETLLEMENT
No court intervention
requires summary
judicial adjudication
gross estate must
not exceed P10T
allowed in both
testate and intestate
available even if
there are debts; it is
the court which will
make provision for
its payment
May be instituted by
ANY INTERESTED
PARTY even a
creditor of the
estate without the
consent of all heirs
bond to be
determined by the
court
amount of bond is
equal to the value of
personal property
DISTRIBUTEES
AND
REMEDIAL L AW COMMITTEE
CHAIRPERSON: Jinky Ann Uy ASST . CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
104
REMEDIAL L AW COMMITTEE
CHAIRPERSON: Jinky Ann Uy ASST . CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
105
2.
3.
4.
5.
means
due
REMEDIAL L AW COMMITTEE
CHAIRPERSON: Jinky Ann Uy ASST . CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
106
REMEDIAL L AW COMMITTEE
CHAIRPERSON: Jinky Ann Uy ASST . CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
107
REMEDIAL L AW COMMITTEE
CHAIRPERSON: Jinky Ann Uy ASST . CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
108
OF
Order Of Preference
1. The surviving husband or wife or
the next of kin, or both in the
discretion of the court, or to
such person as such surviving
spouse or next of kin, request to
have appointed, if competent
and willing to serve. (SURVIVING
SPOUSE OR NOMINEE)
2. If the surviving spouse or the
next of kin or the person
selected
by
them
be
incompetent or unwilling to
serve, or if the surviving spouse
or next of kin neglects for 30
days after the death of the
decedent
to
apply
for
administration, ANY one or more
of the PRINCIPAL CREDITORS, if
competent and willing to serve.
3. If there is no such creditor
competent and willing to serve,
it may be granted to such other
person as the court may select.
(STRANGER)
The Order of appointment of Regular
administrator is final and appealable.
BASIS FOR THE PREFERENTIAL RIGHT
The underlying assumption is that those
who will reap the benefits of a wise,
speedy and economical administration of
the estate or on the other hand, suffer
the
consequences
of
waste,
improvidence or mismanagement, have
the higher interest and most influential
motive to administer the estate
correctly.
RULE 79
OPPOSING ISSUANCE OF LETTERS
TESTAMENTARY PETITION AND
CONTENTS FOR LETTERS OF
ADMINISTRATION
What is the MAIN ISSUE in an
administration proceeding?
Who is the person rightfully entitled to
administration.
REMEDIAL L AW COMMITTEE
CHAIRPERSON: Jinky Ann Uy ASST . CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
109
REMEDIAL L AW COMMITTEE
CHAIRPERSON: Jinky Ann Uy ASST . CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
110
REMEDIAL L AW COMMITTEE
CHAIRPERSON: Jinky Ann Uy ASST . CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
111
RULE 84
GENERAL POWERS OF EXECUTORS AND
ADMINISTRATORS
RULE 85
ACCOUNTABILITY AND COMPENSATION
OF EXECUTORS AND ADMINISTRATORS
POWERS
OF
EXECUTOR/
ADMINISTRATOR OF THE ESTATE
1. To have access to, and examine
and take copies of books and
papers
relating
to
the
partnership in case of a
deceased partner;
2. To examine and make invoices of
the property belonging to the
partnership in case of a
deceased partner;
3. To make improvements on the
properties under administration
with
the
necessary
court
approval except for necessary
repairs;
4. To possess and manage the
estate when necessary:
a) for the payment of debts;
and
b) for payment of expenses of
administration;
5. To maintain in tenantable
repairs
houses
and
other
structures and fences and to
deliver the same in such repair
to the heirs or devisees when
directed so to do by the court.
REMEDIAL L AW COMMITTEE
CHAIRPERSON: Jinky Ann Uy ASST . CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
112
REMEDIAL L AW COMMITTEE
CHAIRPERSON: Jinky Ann Uy ASST . CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
113
REMEDIAL L AW COMMITTEE
CHAIRPERSON: Jinky Ann Uy ASST . CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
114
REMEDIAL L AW COMMITTEE
CHAIRPERSON: Jinky Ann Uy ASST . CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
115
REMEDIAL L AW COMMITTEE
CHAIRPERSON: Jinky Ann Uy ASST . CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
116
Assets
in
the
hands
of
executor/administrator will not be
reduced to prevent a creditor from
receiving his full debt or diminish his
dividends.
Without notice and hearing, the
sale, mortgage or encumbrance is void.
Notice is mandatory. Noncompliance
therewith under the sale is null and void.
Reason:
The reason behind this
requirement is that the heirs are the
presumptive owner. Since they succeed
to all the rights and obligation of the
deceased from the moment of the
latters death, they are the person
directly affected by the sale or mortgage
and therefore cannot be deprived of the
property, except in the manner provided
by law. (Maneclang vs. Baun, 208 SCRA
179)
May the court authorize sale, mortgage
or other encumbrance of estate to pay
debts and legacies in other countries?
(Sec. 5)
When it appears from records and
proceedings of a probate court of
another country that the estate of the
deceased in foreign country is not
sufficient to pay debts and expenses.
Application for authority to sell,
mortgage or encumber property of the
estate may be denied by the court if:
1. the disposition is not for any of
the reasons specified by the
rules; OR
2. under Section 3 Rule 89, any
person interested in the estate
gives a bond conditioned to pay
the
debts,
expenses
of
administration and legacies.
RULE 90
DISTRIBUTION AND PARTITION OF THE
ESTATE
Liquidation means the determination of
all assets of the estate and payment of
all debts and expenses.
REMEDIAL L AW COMMITTEE
CHAIRPERSON: Jinky Ann Uy ASST . CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
117
REMEDIAL L AW COMMITTEE
CHAIRPERSON: Jinky Ann Uy ASST . CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
118
RULE 92
GUARDIANSHIP
MINOR
INCOMPETENT
1. any relative; or
2. other person on
behalf of a minor;
or
3. the minor himself
if 14 years of age
or over; or
1. any relative;
2. friend; or
3. other person on
behalf
of
the
resident incompetent who has no
parents or lawful
guardian; or
4. the Secretary of
Social Welfare and
Development AND
by the Secretary of
Health in case of an
insane minor who
needs
to
be
hospitalized. (Sec.
2 AM 03-02-05-SC)
4. the
Director
of
Health in favor of
an insane person
who
should
be
hospitalized or in
favor of an isolated
leper. (Sec. 1)
REMEDIAL L AW COMMITTEE
CHAIRPERSON: Jinky Ann Uy ASST . CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
119
Jurisdiction:
Incompetents RTC of his residence
or where his property is located in
case of non-residents (Sec. 1)
Minor Family Court of his residence
or where his property is located in
case of non-resident (Sec. 3, AM 0302-08)
KINDS OF GUARDIANS
A. According to scope:
1. General - over the person of the
ward or over his property
2. Limited - over the property only
a)
b)
c)
d)
B. According to constitution:
1. general guardian
2. legal guardian
3. guardian ad litem
INCOMPETENT includes: (Sec. 2)
1. those suffering from penalty of
civil interdiction
2. hospitalized lepers
3. prodigals
4. deaf and dumb who are unable
to read and write
5. those of unsound mind though
they have lucid intervals
6. persons not of unsound mind but
by reason of age, disease, weak
mind and other similar causes
cannot take care of themselves
or manage their property.
e)
f)
g)
RULE 93
APPOINTMENT OF GUARDIANS
Who may petition for appointment of
guardian?
The father and the mother shall jointly
exercise legal guardianship over the
person and property of their minor
without the necessity of a court
appointment. In such case, this Rule
h)
the
jurisdictional
facts;
the name, age
and residence
of
the
prospective
ward;
the
ground
rendering the
appointment
necessary
or
convenient;
the death of
the parents of
the minor or
the
termination,
deprivation or
suspension
of
their parental
authority;
the remarriage
of the minors
surviving
parent;
the
names,
ages,
and
residences
of
relative within
the 4th civil
degree
of
minor, and of
persons having
him in their
care
and
custody;
the
probable
value,
character and
location of the
property of the
minor; and
the name, age
and residence
of the person
for
whom
letters
of
guardianship
are prayed.
INCOMPETENT
a)
b)
c)
d)
e)
f)
the
jurisdictional
facts;
the minority or
incompetency
rendering the
appointment
necessary
or
convenient;
the
probable
value
and
character of his
estate;
the
names,
ages,
and
residences
of
the relatives of
the minor or
incompetent,
and of the
persons having
him in their
care;
the name of the
person
for
whom letters of
guardianship.
(Sec. 2 Rule 93)
REMEDIAL L AW COMMITTEE
CHAIRPERSON: Jinky Ann Uy ASST . CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
120
persons is JURISDICTIONAL.
Next of kin - pertains to those relatives
who are entitled to share in the estate
of the ward under the Law on Intestate
succession including those who inherit
per stirpes or by right of representation.
Sale of the wards realty by the guardian
without authority from the court is VOID.
Under the law, a parent acting merely as
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 vs. CA, GR No. 95305,
Aug. 20, 1992).
The Order of Sale must specify the
grounds.
C. Duration of the order for sale and
encumbrance of property - Within 1
year from the granting of the order.
It is presumed that if the property
was not sold within 1 year, the ward
has sufficient income.
The authority to sell or encumber shall
not extend beyond 1 year unless
renewed by the court.
GENERAL POWERS AND DUTIES OF
GUARDIANS
1. have the care and custody of the
person of the ward, and the
management of his estate, or
the management of the estate
only, as the case may be;
2. pay the debts of the ward;
REMEDIAL L AW COMMITTEE
CHAIRPERSON: Jinky Ann Uy ASST . CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
121
2. has died
REMEDIAL L AW COMMITTEE
CHAIRPERSON: Jinky Ann Uy ASST . CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
122
RULE 98
TRUSTEES
Jurisdiction: RTC in which the will was
allowed, if it be a will allowed in the
Philippines, otherwise by the RTC of the
province in which the property, or some
REMEDIAL L AW COMMITTEE
CHAIRPERSON: Jinky Ann Uy ASST . CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
123
Grounds
1. essential in the interest of
petitioners
2. insanity
3. incapability
of
discharging
trustee
4. unsuitability
Rules on Sale and Encumbrance of Trust
Estate shall conform as nearly as may be
to the provisions on Sale and
Encumbrance by Guardians.
ADOPTION AND CUSTODY OF MINORS
The provisions of the Rules of Court
on Adoption have been amended by the
Domestic Adoption Act of 1998 and
the Intercountry Adoption Act of 1995
EXCEPT: Secs 6 & 7 of Rule 99
Effective August 22, 2002, there is a
new Rule on Adoption.
NATURE AND CONCEPT OF ADOPTION
Adoption is a juridical act, a proceeding
IN REM, which creates between two
persons a relationship similar to that
which results from legitimate paternity
and filiation.
Only an adoption made through the
court, or in pursuance with the
procedure laid down under Rule on
Adoption is valid in this jurisdiction.
PURPOSE OF ADOPTION
The promotion of the welfare of the
child and the enhancement of his
opportunities for a useful and happy life,
and every intendment is sustained to
promote that objective.
WHAT DOES THE COURT DETERMINE IN
ADOPTION CASES
1. capacity of the adopters
2. whether the adoption would be
the best interest of the child
Adoption is strictly personal between the
adopter and the adopted. (Teofico vs.
Del Val)
REMEDIAL L AW COMMITTEE
CHAIRPERSON: Jinky Ann Uy ASST . CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
124
VENUE (Sec.6)
Family Court where the prospective
adoptive parents reside.
Petition shall be verified and specifically
state at the heading of the initiatory
pleading whether the petition contains
an application for a change of name,
rectification
of
simulated
birth,
voluntary or involuntary commitment of
children, or declaration of child as
abandoned, dependent or neglected.
A certification of non-forum shopping
shall be included pursuant to Section 5,
Rule 7 of the 1997 Rules of Civil
Procedure.
PROCEDURE
A. ORDER OF HEARING (Sec.12)
- must be published at least once
a week for 3 CONSECUTIVE WKS.
- at the discretion of the court,
copies of the order of hearing
shall be furnished to the office
of the Sol.Gen. 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 Sol. Gen.
Shall be MANDATORY.
B. CHILD & HOME STUDY REPORTS
(Sec.13)
- social worker verifies with the
Civil Registry the real identity
and the name of adoptee and
the fact that he is legally
available for adoption.
social
worker
may
make
recommendations to the court if
he finds some grounds to deny
the petition.
C. HEARING (sec.14)
- to be held within 6 MONTHS from
the date of issuance of the order
EXCEPT: in 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.
REMEDIAL L AW COMMITTEE
CHAIRPERSON: Jinky Ann Uy ASST . CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
125
records
are
REMEDIAL L AW COMMITTEE
CHAIRPERSON: Jinky Ann Uy ASST . CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
126
REMEDIAL L AW COMMITTEE
CHAIRPERSON: Jinky Ann Uy ASST . CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
127
REMEDIAL L AW COMMITTEE
CHAIRPERSON: Jinky Ann Uy ASST . CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
128
REMEDIAL L AW COMMITTEE
CHAIRPERSON: Jinky Ann Uy ASST . CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
129
1. By legal process
2. Prisoner is delivered to an
inferior officer to carry to jail
3. By order of proper court or judge
be removed from one place to
another within the Phil. for trial.
4. In case of fire, epidemic,
insurrection or other necessity or
public calamity.
When does court acquire jurisdiction
over person of respondent?
The writ itself plays the role as summon
in ordinary actions; court acquires
jurisdiction over the person of the
respondent BY MERE SERVICE OF WRIT.
APPEAL IN HABEAS CORPUS CASES
The appeal in habeas corpus cases may
be taken in the name of the person
detained or of the officer or person
detaining him.
An appeal in habeas corpus cases shall
be perfected by filing with the clerk of
court or the judge, within 48 hours from
notice of judgment, a notice of appeal.
RULE ON CUSTODY OF MINORS AND
WRIT OF HABEAS CORPUS
IN RELATION TO THE CUSTODY OF
MINORS (A.M. No. 03-04-04-SC)
Who may file Petition? (Sec.3)
- A verified petition for the rightful
custody of a minor may be filed by any
person claiming such right.
Where to file petition? (Sec.3)
- Family Court of the province or city
where the petitioner resides or where
the minor may be found.
Provisional Order Awarding Custody
(Sec.13)
As far as practicable, the following order
of preference shall be observed in the
award of custody:
a. Both parents jointly;
b. Either parent, taking into
account
all
relevant
considerations, especially the
REMEDIAL L AW COMMITTEE
CHAIRPERSON: Jinky Ann Uy ASST . CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
130
REMEDIAL L AW COMMITTEE
CHAIRPERSON: Jinky Ann Uy ASST . CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
131
CONSEQUENCE
0-2 years
--------
2 years to 7 years
Petition for
declaration of
absence may be filed
Considered dead for
all intents and
purposes except for
purposes of
succession
For purposes of
marriage: 4 years
continuous absence
shall be sufficient for
present spouse to
remarry, 2 years only
under extraordinary
circumstance
Beyond 7 years
(absence of 4 years
under extraordinary
circumstance)
REMEDIAL L AW COMMITTEE
CHAIRPERSON: Jinky Ann Uy ASST . CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
132
PETITIONS FOR
THE CORRECTION,
CANCELLATION OF
ENTRIES
Petition to be filed
in the RTC where
the petitioner
resides
Verified petition
filed in the RTC
where the
corresponding Civil
registry is located
Solicitor General
Civil registrar
must be notified by
concerned is made a
service of a copy of
party to the
the petition.
proceeding as a
respondent. The
Solicitor General
must also be notified
by service of a copy
of the petition.
Petition is filed by
Petition is filed by
person desiring to
any person
change his name
interested in any
ACT, EVENT, ORDER
or DECREE
Order for hearing
Order shall also be
shall be published
published once for
once a week for
three consecutive
three consecutive
weeks and court
weeks
shall cause
reasonable notice to
persons named in
petition
Service of judgment shall be upon the civil
register concerned
REMEDIAL L AW COMMITTEE
CHAIRPERSON: Jinky Ann Uy ASST . CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
133
APPEAL IN
SPECIAL
PROCEEDINGS
PERIOD:
15 days
30 days
REQUIREMENTS
Notice of Appeal and
Docket Fees
Record on Appeal
and Docket Fees
No extension
May be extended on
meritorious grounds
REMEDIAL L AW COMMITTEE
CHAIRPERSON: Jinky Ann Uy ASST . CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
134
SPECIAL PROCEEDING
1.
VENUE
JURISDICTION
2. Escheat
RTC
RTC
c. Unclaimed Balance
Where the dormant deposits
are located
RTC
3.
Appointment of
Guardians
4.
Appointment of
Trustees
5.
Adoption
Family Court
6.
Rescission of Adoption
Family Court
7.
Habeas Corpus
8.
Change of Name
RTC
9.
Appointment of
Representative of
Absentee/Declaration of
Absence
RTC
10. Cancellation/Correction
of Entries in the Civil
Registries
RTC
RTC
REMEDIAL L AW COMMITTEE
CHAIRPERSON: Jinky Ann Uy ASST . CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
135
REMEDIAL L AW COMMITTEE
CHAIRPERSON: Jinky Ann Uy ASST . CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)