Family Code of the Philippines Faqs

Disclaimer

Content on this web page is informational in nature, not specific legal advice, and someone seeking legal advice should consult with a lawyer licensed in their jurisdiction.

Divorce

Q. – Is foreign divorce between Filipinos recognized in the Philippines?

A. – No, a foreign divorce between Filipino citizens is not recognized as valid in the Philippines and neither is the marriage contracted with another party subsequent to the foreign decree of divorce entitled to validity (Art. 26, Family Code).

Foreign Adoption

Q. – Can a foreigner adopt a child in the Philippines?

A – Yes, under Republic Act No. 8043 otherwise known as Inter-Country Adoption law, it allows a foreigner to adopt a child in the Philippines.

Child Custody

Q. – In case of separation-in-fact of parents, who has the right of custody over the child?

A. – No child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise (Second paragraph, Art. 213, Family Code).

Child Support

Q. – Can I get support for my child even though I am not married to the father?

A. – Yes, parents are obliged to support their illegitimate children (Art. 195, Family Code).

Nullity of Marriage

Q. – Do I need a judicial declaration of nullity of a previous marriage before contracting a subsequent marriage?

A. – Yes, a judicial declaration is needed to determine whether a person is legally free to contract a second marriage to avoid liability for bigamy (Art. 40, Family Code; Mercado v. Tan, G.R. No. 137110, August 1, 2000).

Q. – May the heirs of a deceased person file a petition for the declaration of nullity of his marriage after his death?

A. – Yes, the Court may pass upon the validity of marriage even in a suit not directly instituted to question the same so long as it is essential to the determination of the case. (Niñal v. Bayadog, G.R. No. 133778, March 14, 2000, 328 SCRA 122).

Bigamy & Nullity of Marriage

Q. – Is the pendency of a civil case for declaration of nullity of marriage a prejudicial question to suspend the criminal case for bigamy?

A. – No, the prosecution of the criminal case cannot be delayed or frustrated by filing belatedly a judicial declaration of nullity of first marriage. (Bobis v. Bobis, G.R. 138509, July 31, 2000).

Psychological Incapacity

Q. – What do you mean by psychological incapacity as a ground for declaration of nullity of marriage?

A. – In the Supreme Court Decision entitled, “Hernandez v. Court of Appeals and Hernandez,” G.R. No. 126010, December 8, 1999, 320 SCRA 76, citing “Santos v. Court of Appeals,” psychological incapacity was defined as follows:

“Psychological incapacity” should refer to no less than a mental (not physical) incapacity that causes a party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage which, as so expressed by Article 68 of the Family Code, include their mutual obligations to live together, observe love, respect and fidelity and render help and support.

There is hardly any doubt that the intendment of the law has been to confine the meaning of “psychological incapacity” to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage. This psychological condition must exist at the time the marriage is celebrated. The law does not evidently envision, upon the other hand, an inability of the spouse to have sexual relations with the other. This conclusion is implicit under Article 54 of the Family Code which considers children conceived prior to the judicial declaration of nullity of the void marriage to be “legitimate.”

The other forms of psychoses, if existing at the inception of marriage, like the state of a party being of unsound mind or concealment of drug addiction, habitual alcoholism, homosexuality or lesbianism, merely renders the marriage contract voidable pursuant to Article 46, Family Code. If drug addiction, habitual alcoholism, lesbianism or homosexuality should occur only during the marriage, they become mere grounds for legal separation under Article 55 of the Family Code. These provisions of the Code, however, do not necessarily preclude the possibility of these various circumstances being themselves, depending on the degree and severity of the disorder, indicia of psychological incapacity.

Until further statutory and jurisprudential parameters are established, every circumstance that may have some bearing on the degree, extent, and other conditions of that incapacity must, in every case, be carefully examined and evaluated so that no precipitate and indiscriminate nullity is peremptorily decreed. The well-considered opinions of psychiatrists, psychologists, and persons with expertise in psychological disciplines might be helpful or even desirable.”

Further, the Supreme Court cited “Republic of the Philippines v. Court of Appeals,” to wit:

“The root cause of the psychological incapacity must be: (a) medically or clinically identified, (b) alleged in the complaint, (c) sufficiently proven by the experts and (d) clearly explained in the decision. Article 36 of the Family Code requires that the incapacity must be psychological — not physical, although its manifestations and/or symptoms may be physical. The evidence must convince the court that the parties, or one of them, was mentally or physically ill to such an extent that the person could not have known the obligations he was assuming or knowing them, could not have given valid assumption thereof. Although no example of such incapacity need be given here so as not to limit the application of the provision under principle of ejusdem generis (citing Salita v. Magtolis, supra) nevertheless such root cause must be identified as a psychological illness and its incapacitating nature fully explained. Expert evidence may be given by qualified psychiatrists and clinical psychologists.”

Inheritance of Adopted Children

Q. – What is the share of the legitimate parents or ascendants if they concur with an adopted child as regards the estate of the adopter?

A. – The adopted shall exclude the legitimate parents or ascendants as they are declared to be legitimate children of the adopter according to Art. 189, Family Code.

Surnames

Q. – Can an illegitimate child use the surname of his father?

A. – As a rule, illegitimate children shall use the surname and shall be under the parental authority of their mother (Article 176, Family Code). However, as an exception, illegitimate children may use the father’s surname if there has been an acknowledgement/recognition by the father (Art. 172, Family Code; DOJ Opinion No. 4, S. 1998).

Change of First Name

Q. – What are the grounds for change of first name or nickname without a judicial order?

A. – Republic Act No. 9048 dated March 22, 2001 provides the grounds for change of first name or nickname, to wit:

1. The petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or merely difficult to write or pronounce;

2. The new first name or nickname has been habitually and continuously used by the petitioner and he has been publicly known by that first name or nickname in the community or;

3. The change will avoid confusion.

Implementing Rules and Regulations of Republic Act No. 9048

Q – What is the National Statistics Office Administrative Order No. 1, Series of 2001 (July 24, 2001)?

A – It is the implementing rules and regulations of RA 9048 which provides for the correction of clerical or typographical errors and change of first name or nickname.

Q – Who are authorized to correct clerical or typographical error and to change first name or nickname?

A – The city/municipal civil registrar, Consul General, including the Clerk of the Shari’a Court in his capacity as District or Circuit Registrar of Muslim Marriages, Divorces, Revocations of Divorces and Conversions, are hereby authorized to correct clerical or typographical error and to change name or nickname in the civil registrar.

Q – What is a clerical or typographical error under the IRR?

A – It refers to a mistake committed in the performance of clerical work in writing, copying, transcribing or typing an entry in the civil register that is harmless and innocuous, such as misspelled name or misspelled place of birth or the like, which is visible to the eyes or obvious to the understanding, and can be corrected or changed only by reference to other existing record or records: Provided, however, That no correction must involve the change of nationality, age, status or sex of the petitioner.

Q – Who may file the petition?

A – 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, may file the petition.

A person is considered to have direct and personal interest when he is the owner of the record, or the owner’s spouse, children, parents, brothers, sisters, grandparents, guardian, or any other person duly authorized by law or by the owner of the document sought to be corrected: Provided, however, That when a person is a minor or physically or mentally incapacitated, the petition may be filed on his behalf by his spouse, or any of his children, parents, brothers, sisters, grandparents, guardians, or persons duly authorized by law.

Q – What is the form and content of the petition?

A – The petition shall be in the prescribed form of an affidavit, subscribedand sworn to before any person authorized by law to administer oath. The affidavit shall set forth facts necessary to establish the merits of the petition and shall show affirmatively that the petitioner is competent to testify to the matters stated. The petitioner shall state the particular erroneous entry or entries sought to be corrected or the first name sought to be changed, and the correction or change to be made.

Q – Where can you file the petition?

A – The verified petition may be filed, in person, with the Local Civil Registry Office (LCRO) of the city or municipality or with the Office of the Clerk of the Shari’a Court as the case may be, where the record containing the clerical or typographical error to be corrected, or first name to be changed, is registered.

When the petitioner had already migrated to another place within the Philippines and it would not be practical for such party, in terms of transportation expenses, time and effort to appear in person before the Record-Keeping Civil Registrar (RKCR), the petition may be filed, in person, with the Petition-Receiving Civil Registrar (PRCR) of the place where the migrant petitioner is residing or domiciled.

Any person whose civil registry record was registered in the Philippines, or in any Philippine Consulate, but who is presently residing or domiciled in a foreign country, may file the petition, in person, with the nearest Philippine Consulate, or in accordance with Rule 3 thereof.

Law on Early Childhood Care and Development (ECCD)

Q – What is the ECCD Act?

A – The ECCD Act is the institutionalization of a National System for Early Childhood Care and Development that is comprehensive, integrative and sustainable, that involves multisectoral and inter-agency collaboration at the national and local levels among government; among services providers,families and communities; and among the public and private sectors, non-government organizations, professional associations, and academic institutions. This system shall promote the inclusion of children with special needs and advocate respect for cultural diversity.

It shall be anchored on complementary strategies for ECCD that include service delivery for children from conception to age six (6), educating parents and caregivers, encouraging the active involvement of parents and communities in ECCD programs, raising awareness about the importance of ECCD, and promoting community development efforts that improve the quality of life for young children and families.

Q – What is the declared policy of the State in the enactment of the ECCD Act?

A – It is the declared policy of the State to promote the rights of children to survival, development and special protection with full recognition of the nature of childhood and its special needs; and to support parents in their roles as primary caregivers and as their children’s first teachers.

Q – What are the objectives of the National ECCD System?

A – The objectives of the National ECCD System are the following:

a.) To achieve improved infant and child survival rates by ensuring that adequate health and nutrition programs are accessible to young children and their mothers from the pre-natal period throughout the early childhood years;

b.) To enhance the physical, social, emotional, cognitive, psychological, spiritual and language development of young children;

c.) To enhance the role of parents and other caregivers as the primary caregivers and educators of their children from birth onwards;

d.) To facilitate smooth transition from care and education provided at home to community or school-based setting and to primary school;

e.) To enhance the capabilities of service providers and their supervisors to comply with quality standards for various ECCD programs;

f.) To enhance and sustain the efforts of communities to promote ECCD programs and ensure that special support is provided for poor and disadvantaged communities;

g.) To ensure that young children are adequately prepared for the formal learning system and that both public and private schools are responsive to the developmental needs of these children;

h.) To establish an efficient system for early identification, prevention, referral and disabilities in early childhood; and

i.) To improve the quality standards of public and private ECCD programs through, but not limited to, a registration and credential system for ECCD service providers.

Solo Parents Welfare Act of 2000

Q – What is Republic Act No. 8972?

A – The Republic Act No. 8972 otherwise known as the Solo Parents Welfare Act of 2000 is a comprehensive program of services for solo parents and their children to be carried out by the Department of Social Welfare and Development (DSWD), the Department of Health, (DOH), the Department of Education, Culture and Sports (DECS), the Department of the Interior and Local Government (DILG), the Commission on Higher Education (CHED), the Technical Education and Skills Development Authority (TESDA) the National Housing Authority (NHA), the Department of Labor and Employment (DOLE), and other related government and non-government agencies.

Q – Who is considered a Solo Parent under the Act?

A – A Solo Parent is any individual who falls under any of the following categories:

a.) A woman who gives birth as a result of rape and other crimes against chastity even without a final conviction of the offender: Provided, That the mother keeps and raises the child;

b.) Parent left solo or alone with the responsibility of parenthood due to death of spouse;

c.) Parent left solo or alone with the responsibility of parenthood while the spouse is detained or is serving sentence for a criminal conviction for at least one (1) year;

d.) Parent left solo or alone with the responsibility of parenthood due to physical and/or mental incapacity of spouse as certified by a public medical practitioner;

e.) Parent left solo or alone with the responsibility of parenthood due to legal separation or de facto separation from spouse for at least one (1) year, as long as he/she is entrusted with the custody of the children;

f.) Parent left solo or alone with the responsibility of parenthood due to declaration of nullity or annulment of marriage as decreed by a court or by a church as long as he/she is entrusted with the custody of the children;

g.) Parent left solo or alone with the responsibility of parenthood due to abandonment of spouse for at least one (1) year;

h.) Unmarried mother/father who has preferred to keep and rear her/his child/children instead of having others care for them or give them up to a welfare institution;

i.) Any other person who solely provides parental care and support to a child or children; and

j.) Any family member who assumes the responsibility of head of family as a result of the death, abandonment, disappearance or prolonged absence of the parents or solo parent.

Q – What is the declared policy of the State as to Solo Parents and their children?

A – It is the declared of policy of the State to promote the family as the foundation of the nation, strengthen its solidarity and ensure its total development.

Inheritance Law

Q – What are the kinds of Inheritance under the Philippine Law?

A – The kinds of inheritance under the Philippine Law are the following:

a.) Testamentary Succession – when the decedent died with a valid will which must be duly probated because a will cannot transfer ownership or pass property unless it has been duly probated or allowed by the court (Art. 838, Civil Code). Aside from the presence of a valid will, it is essential that there are qualified heirs who will inherit. Otherwise, even if there is a will if the designated heirs are not qualified, intestacy will govern. In testamentary succession, we respect the wishes of the decedent insofar as the free portion of the estate is concerned. As regards the legitime, it is the law and not the will of the decedent that governs.

b.) Intestate Succession – the estate of the decedent is divided in accordance with the provisions of the law. That is why we call it legal succession. The law operates by presuming the will of the decedent. The decedent’s will is just presumed because in intestate succession, either the decedent died without a will or he died with a void or ineffective will. It is not correct to say that there is intestacy just because there is no will. In intestacy, a valid will could be in existence although, it might havesimply lost its validity or there are no qualified heirs or all the designated heirs have repudiated the inheritance (Art. 960, Civil Code).

c.) Mixed Succession – when the estate of the deceased is distributed partly in accordance with the will of the testator and partly in accordance with the rules on intestacy. This can happen for instance, when the testator made a will but failed to cover and dispose of all his properties in the will. Those covered by the will shall be distributed in accordance with the will and those not covered by the rules on intestacy.

d.) Partition inter vivos – is the partition of the estate of a person made by him during his lifetime. It is allowed but effective only after his death. It can be made in a will. Such partition is valid so long as no legitimes of compulsory heirs are impaired (Art. 1080, Civil Code).

Q – What is the legitime of an illegitimate child?

A – The legitime or share of illegitimate children is fixed at one half (1/2) of the legitime or share of one legitimate child (Art. 176, Family Code).

Q – Who is considered the intestate or legal heir?

A – The intestate or legal heirs are those called to succeed by operation of law. They inherit when the decedent died without a valid will or with a void will or with a will which was rendered inoperative or ineffective (Art. 960, Civil Code). The following are considered as the intestate or legal heirs:

a.) Legitimate children and their descendants (Art. 985);

b.) Legitimate parents and ascendants (Art. 985);

c.) Illegitimate children (Art. 988);

d.) Surviving spouse (Art. 995) without prejudice to rights of brothers and sisters when they concur (Art. 1001);

e.) Collateral relatives within the fifth degree (Art. 1010); and

f.) The State (Art. 1011).

Q – Who are considered compulsory heirs?

A – The following persons are compulsory heirs entitled to a legitime:

a.) Legitimate children (including legitimated and adopted children) and descendants, with respect to their legitimate parents and ascendants;

b.) In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate children and descendants;

c.) The widow or widower; and

d.) The Illegitimate children.

Partition

Q – What is partition of property?

A – Partition is the separation, division and assignment of a thing held in common or in co-ownership (Art. 1079, Civil Code).

Q – What are the kinds of partition?

A – The kinds of partition are as follows:

a.) Judicial – when the partition is coursed through the court:

a.1.) Administration proceedings (Rule 84, Section 90);

a.2.) Judicial summary settlement (Rule74, Section 2);

a.3.) Ordinary action for partition (Rule 74, Section 1; Rule 69, RRC).

b.) Extra-judicial – when the partition is done without judicial intervention:

b.1.) When the co-heirs voluntarily agree among themselves to partition the estate of the decedent (Rule 74, Section 1; Art. 1083 and Art. 1085, NCC);

b.2.) When the sole heir adjudicates to himself the entire estate of the decedent by executing an affidavit of adjudication (Rule 74, Section 1);

b.3.) By the decedent through an act inter vivos (Art. 1080);

b.4.) By the decedent through his will (Art. 1080);

b.5.) By a person entrusted by the testator or decedent to make physical division of the estate for the benefit of the heirs entitled thereto (Art. 1081, paragraph 1).

Anti-Sexual Harassment Act of 1995

Q – What is work related, education or training related sexual harassment?

A – Under Republic Act No. 7877 dated February 14, 1995, sexual harassment is defined as:

“Work, education or training-related sexual harassment is committed by an employer, employee, manager, supervisor, agent of the employer, teacher, instructor, professor, coach, trainor, or any other person who, having authority, influence or moral ascendancy over another in a work or training or education environment, demands, requests or otherwise requires any sexual favor from the other, regardless of whether the demand, request or requirement for submission is accepted by the object of said act.”

Q – When is sexual harassment committed in work-related or in an employmentenvironment?

A – Sexual harassment is committed when:

1. The sexual favor is made as a condition in the hiring or in the employment, re-employment or continued employment of said individual, or in granting said individual favorable compensation, terms, conditions, promotions or privileges; or the refusal to grant the sexual favor results in limiting, segregating or classifying the employee which in any way would discriminate, deprive or diminish employment opportunities or otherwise adversely affect said employee;

2. The above acts would impair the employee’s rights or privileges under existing labor laws; or,

3. The above acts would result in an intimidating, hostile, or offensive environment for the employee.

Q – When is sexual harassment committed in an education or training environment?

A – Sexual harassment is committed when:

1. Against one who is under the care, custody or supervision of the offender;

2. Against one whose education, training apprenticeship or tutorship is entrusted to the offender;

3. When the sexual favor is made a condition to the giving of a passing grade, or the granting of honors and scholarships, or the payment of a stipend, allowance or other benefits, privileges or considerations; or

4. When the sexual advances result in an intimidating, hostile or offensive environment for the student, training or apprentice.

Any person who directs or induces another to commit any act of sexual harassment herein defined, or who cooperates in the commission thereof by another without which it would not have been committed, shall also be held liable under this Act.

Administrative Disciplinary Rules on Sexual Harassment Cases

Q – What is the Civil Service Commission Resolution No. 01-0940?

A – These are the rules and regulations defining the administrative offense of sexual harassment and prescribing the standard procedure for the administrative investigation, prosecution and resolution of sexual harassment cases in the public sector (dated May 21, 2001).

Q – What is the scope and coverage of the Rules?

A – The rules shall apply to all officials and employees in government, whether in the Career or Non-Career service and holding any level of position, including Presidential appointees and elective officials regardless of status, in the national or local government, state colleges and universities, including government-owned or controlled corporations, with original charters.

Q – Under the Rules, what is the definition of the administrative offense of sexual harassment?

A – The administrative offense of sexual harassment is an act, or a series of acts, involving any unwelcome sexual advance, request or demand for a sexual favor, or other verbal or physical behavior of a sexual nature, committed by a government employee or official in a work-related, training or education related environment of the person complained of.

Q – What is work-related sexual harassment?

A – Work-related sexual harassment is committed under the followingcircumstances:

1. Submission to or rejection of the act or series of acts is used as a basis for any employment decision (including, but not limited to, matters related to hiring, promotion, raise in salary, job security, benefits and any other personnel action) affecting the applicant/employee; or

2. The act or series of acts have the purpose or effect of interfering with the complainants’ work performance, or creating an intimidating, hostile or offensive work environment; or

3. The act or series of acts might reasonably be expected to cause discrimination, insecurity, discomfort, offense or humiliation to a complainant who may be a co-employee, applicant, customer, or ward of the person complained of.

Q – What is education or training-related sexual harassment?

A – Education or training-related sexual harassment is committed against one who is under the actual or constructive care, custody or supervision of the offender, or against one whose education, training, apprenticeship, internship or tutorship is directly or constructively entrusted to, or is provided by, the offender, when:

1. Submission to or rejection of the act or series of acts is used as a basis for any decision affecting the complainant, including, but not limited to, the giving of a grade, the granting of honors or a scholarship, the payment of a stipend or allowance, or the giving of any benefit, privilege or consideration.

2. The act or series of acts have the purpose or effect of interfering with the performance, or creating an intimidating, hostile or offensive academic environment of the complainant; or

3. The act or series of acts might reasonably be expected to causediscrimination, insecurity, discomfort, offense or humiliation to a complainant who may be a trainee, apprentice, intern, tutee or ward of the person complained of.