for non- personal service and filing, and the

NOTES IN payment of filing fees for money claims

IN SPECIAL PROCEEDINGS against an estate would not in any way
obstruct probate proceedings, thus, they
RULE 72 are applicable to special proceedings such
as the settlement of the estate of a
SUBJECT MATTER AND APPLICABILITY
OF GENERAL RULES deceased person as in the present case.

RULE 73: Venue and Process

1. DEFINE SPECIAL PROCEEDING.
SETTLEMENT OF ESTATE OF DECEASED
It is an application to establish the status PERSONS
or right of a party or a particular fact or any
remedy other than an ordinary suit in a court of 1. WHICH COURT HAS JURISDICTION
justice. OVER PROBATE PROCEEDING?
Pursuant to R.A. 7691, the question as to
which court shall exercise jurisdiction over
2. DISTINGUISH CIVIL ACTION FROM SPECIAL
probate proceedings depends upon the gross
PROCEEDING.
value of the estate of the decedent.

1. A special proceeding under the same rule In Metro Manila, the Municipal Trial Court
provides that it is a remedy by which a has jurisdiction on the said proceeding if the
party seeks to establish a status, a right or value of the estate does not exceed
a particular fact. P400,000.00, otherwise, the Regional Trial Court
has jurisdiction over the same.
Pursuant to Section 3, Rule 1 of the 1997
Rules of Civil Procedure, a civil action is Outside Metro Manila, Municipal Trial
one by which a party sues another for the Courts, Metropolitan Trial Courts and Municipal
enforcement or protection of a right, or the Circuit Trial Courts have jurisdiction over
prevention or redress of a wrong. probate proceedings if the gross value of the
estate left by the decedent does not exceed
2. Unlike actions, a special proceeding is P300,000.00
generally commenced by application,
Republic Act 11576: Expanding the
petition or special form of pleading as may
Jurisdiction of the Municipal Trial Court,
be provided for by the particular rule or law.
Metropolitan Trial Court and Municipal Circuit
Trial Court and Amending the B.P. Blg. 129.
3. Unlike actions, in special proceedings, it
does not pray for affirmative relief for injury
Section 19: Jurisdiction of the Regional
arising from a party’s wrongful act or Trial Court in Civil Cases. RTC shall exercise
omission nor state a cause of action that
original jurisdiction:
can be enforced against any person.
(4) In all matters of probate, both testate and
3. ARE THE RULES IN CIVIL ACTIONS intestate where the gross value of the estate
APPLICABLE IN SPECIAL exceeds Two Million Pesos (₱2,000,000.00).
PROCEEDINGS?
Yes, in the absence of special provisions, the Section 2 Amended Section 33 of the same
rules provided for ordinary actions shall be, as law provides:
far as practicable, applicable in special
Section 33. Jurisdiction of the Metropolitan
proceedings. (Section 2, Rule 72 of the Rules of
Trial Court, Municipal Trial Court in Cities,
Court)
Municipal Courts, and Municipal Circuit Trial
4. ALAN JOSEPH A. SHEKER v. ESTATE Courts in Civil Cases shall exercise:
OF ALICE O. SHEKER, VICTORIA S.
MEDINA (G.R. No. 157912, December 13, (1) Exclusive original jurisdiction over civil
2007) actions and probate proceedings,
testate and intestate, including the grant
DOCTRINE: Provisions of the Rules of of provisional remedies in proper cases,
Court requiring a certification of non- where the value of the personal property
forum shopping for complaints and or amount of the demand does not
initiatory pleadings, a written explanation exceed Two Million Pesos
 (₱2,000,000.00)xxx instrument and registered in the
Registry of Deeds.
RULE 75
2. VENUE IN THE SETTLEMENT OF
ESTATE PROCEEDING? PRODUCTION OF WILL
ALLOWANCE OF WILL NECESSARY
1. IS ALLOWANCE OF A WILL NECESSARY?
The residence of the decedent at the time Yes, the allowance of a will is necessary.
of his death is determinative of the venue of the Section 1 of Rule 75 is explicit, “No will shall
proceeding. pass either real or personal estate unless it is
proved and allowed in the proper court.”
It is only where the decedent was a
nonresident of the Philippines at the time of his 2. IS THE PROBATE OF A WILL MANDATORY?
death that venue lies in any province in which
he had estate. Yes. The probate of a will is mandatory.
(Baluyot v. Panio, L-42088, 71 SCRA 86)
3. WHAT IS THE NATURE OF THE
PROCEEDINGS OF SETTLEMENT OF 3. DOES A WILL HAVE FORCE AND EFFECT
THE ESTATE? EVEN IF NOT PROBATED?

The settlement of a decedent’s estate is a No. Until admitted to probate, a will has no
proceeding in rem which is binding against the effect, and no right can be claimed thereunder.
whole world. All persons having interest in the (Pascual v. Court of Appeals, 409 SCRA 105)
subject matter involved, whether they were
4. MAY A PROBATE COURT PASS UPON THE
notified or not, are equally bound. (Philippine
INTRINSIC VALIDITY OF A WILL?
Savings Bank v. Lantin, 124 SCRA 483)
No. In a special proceeding for the probate
of a will, the issue by and large is restricted to
4. QUIAZON V. BELEN, G.R. No. 189121,
the extrinsic validity of the will, i.e. whether the
July 31, 2013.
testator, being of sound mind, freely executed
the will in accordance with the formalities
DOCTRINE: As thus defined, "residence," in the prescribed by law. As a rule, the question of
context of venue provisions, means nothing ownership is an extraneous matter which the
more than a person’s actual residence or place probate court cannot resolve with finality.
of abode, provided he resides therein with (Pastor Jr. v. CA, 122 SCRA 185)
continuity and consistency.
5. IS A PROBATE COURT A COURT OF LIMITED
RULE 74 JURISDICTION?
SUMMARY SETTLEMENT OF ESTATES
Yes. A probate court is a court of limited
1. IF A PERSON HAD NO KNOWLEDGE OR jurisdiction. As such, it may only determine
HAD NOT PARTICIPATED IN THE and rule upon issues that relate to settlement
EXTRAJUDICIAL SETTLEMENT, IS HE of the estate of deceased person such as the
BOUND THEREBY BY REASON OF administration, liquidation and distribution of
CONSTRUCTIVE NOTICE OF the estate.
PUBLICATION?
THE ROMAN CATHOLIC BISHOP OF
No. The publication of the settlement does TUGUEGARAO, PETITIONER, VS.
not constitute constructive notice to the heirs FLORENTINA PRUDENCIO, ET. AL.
who had no knowledge or did not take part in it (GR. No. 187942, September 7, 2016, Jardeleza, J.)
because the same was notice after the fact of
DOCTRINE: In all execution of Extrajudicial
execution. Settlement of the estate of the deceased, all
Exception: heirs of the deceased should have
participated. No extrajudicial settlement shall
1. Execution of extrajudicial settlement of be binding upon any person who has not
estate: participated or had no notice thereof. As the
partition was a total nullity and did not affect
i. No will
the excluded heirs, it was not correct for the
ii. No debts trial court to hold that their right to challenge
the partition had prescribed after two years
iii. Heirs properly represented from its execution.
iv. The settlement is in a public
 It is clear that Section 1 of Rule 74 does No. It may be filed at any time and is required by
not apply to the partition in question which public policy.
was null and void as far as the plaintiffs were
concerned. The rule covers only valid
partitions. May loss or destroyed will be allowed/probated?
Yes, provided that the following must be complied
In this case, the partition was invalid with:
because it excluded six of the nine heirs who
were entitled to equal shares in the 1. Execution and validity of the will must be
partitioned property. Under the rule "no established;
extrajudicial settlement shall be binding 2. Will must have been in existence at the time
upon any person who has not participated of death of the testator or shown to have
therein or had no notice thereof." As the been fraudulently or accidentally destroyed
partition was a total nullity and did not affect in the lifetime of the testator without his
the excluded heirs, it was not correct for the knowledge;
trial court to hold that their right to challenge
the partition had prescribed after two years 3. Provisions are clearly and distinctly proved
from its execution. by at least 2 credible witnesses.

RULE 86
*IS THE ORDINARY ACTION FOR PARTITION Claims Against Estate
INTENDED TO TAKE THE SPECIAL
PROCEEDING ON THE SETTLEMENT OF Statue of Non-Claims
ESTATE? It is the period fixed by Section 2 of the Rule 86 for the
filing of the claims against the estate.
Yes, the ordinary action for partition
therefore is meant to take the place of the The rule mandates that certain creditors of a deceased
special proceeding on the settlement of the person to present their claims for examination and
estate. The reason is that, if the deceased dies allowance within a specified period, the purpose
without pending obligations, there is no necessity thereof being to settle the estate with dispatch, so that
for the appointment of an administrator to the residue of the estate may be delivered to the
administer the estate for the heirs and the persons entitled to without their being afterwards
creditors, much less, the necessity to deprive the called upon to respond in actions for claims, which
under the ordinary statute of limitations have not yet
real owners of their possession to which they are
prescribed.
immediately entitled. (Heirs of Ernesto Morales
vs. Astrid Morales Agustin, represented by her Period to file a claim against the estate
Attorney-In-Fact, Edgardo Torres, G.R. No.
224849, June 06, 2018, Reyes, Jr., J.) Not less than six (6) months nor more than twelve
(12) months from the day of the first publication of the
RULE 76 notice thereof.

ALLOWANCE OR DISALLOWANCE OF WILL Rationale: To insure a speedy settlements of the

affairs of the deceased person and early delivery of
the property to the person entitled to the same.
1 WHO MAY PETITION?
a. Any executor, devisee, or legatee named Extension of the given period allowed?
in a will, or
Yes, the money claims against the estate maybe
b. Any other person interested in the estate allowed any time before an order of distribution is
entered, at the discretion of the court for cause and
2. WHO IS A “PERSON INTERESTED IN THE upon such terms as are equitable.
ESTATE”?
Significance of publication of notice to creditors?
AMELIA QUIAZON V. MA. LOURDES BELEN
The publication notice to creditor is constructive notice
(G.R. No. 189121, July 31, 2013)
to all, hence a creditor cannot be permitted to file his
claim beyond a period fixed in said notice on the bare
DOCTRINE: An “interested party”, in estate ground that he had no knowledge of administration
proceedings, is one who would be benefited in proceeding.
the estate, such as an heir, or one who has a
claim against the estate, such as a creditor. Alternative Remedies Available to a Mortgage
Creditor upon the death of the Mortgagor
Also, in estate proceedings, the phrase “next
of kin” refers to those whose relationship with 1. To waive the security mortgage and claim
the decedent is such that they are entitled to the entire debt from the estate as an
share in the estate as distributes. ordinary claim;

Is probate of a will subject to prescription? Effect: Deemed to have abandoned the

 mortgage and thereafter he cannot file a The court may order that sufficient estate be
foreclosure suit if he fails to recover his retained to pay the contingent claim.
money claims against the estate.
What is the consequence if such a contingent
2. To foreclose the mortgage judicially and claim becomes absolute and is presented within 2
prove any deficiency as an ordinary claim; years from the time limited for other creditors to
present their claims?
3. To rely solely upon the mortgage and The contingent may be allowed by the court if not
foreclose the same at any time before it is disputed by the executor or administrator. If disputed,
barred by the prescription without right to the court shall decide.
claim for any deficiency. This mode includes
extrajudicial foreclosure of sale and its RULE 89
exercise precludes one from recovery any Sales, Mortgages, and other Encumbrance of
balance of indebtedness against the estate Property of Decedent
and free the estate from any liability.
Are the notices under Section 2, 4, and 7 of Rule 89 a
IMPORTANT NOTES: mandatory requirement to effect the authority of the
sale or encumbrance of real property?
General Rule: A probate court has no Ans: Yes, failure to give notice to the heirs, devisees or
jurisdiction to entertain a claim in favor of legatees would invalidate the authority granted by the
the estate against a third person as the court.
same must be subject of an ordinary
action. Without compliance with such sections, the authority to
sell, the sale itself and the order approving it would be null
Exception: and void.

Section 10 of Rule 86:Authorizes the RULE 90

executor or administrator to interpose any Distribution and Partition of the Estate
counterclaim in offset of a claim against
the estate. Said counterclaim is regarded When must the order for distribution of residue be
as compulsory claim as a failure to file the made?
same shall bar the claim forever. When the debts, funeral charges, and expenses of
administration, the allowance to the widow, and
RULE 88 inheritance tax, if any, chargeable to the estate in
Payment of the Debts of the Estate accordance with law, have been paid, the court shall
assign the residue of the estate to the person entitled
Does the probate court have the power to issue a to the same, naming them and the proportions, or
writ of execution against claims? parts to wich each is entitled.
No, the proper procedure is for the court to order the
sale of personal estate or the sale or mortgage of real No distribution shall be allowed until the payment of
property of the deceased and all debts and expenses the obligations above-mentioned has been made or
of administration should be paid out of the proceeds provide for, unless the distributes, or any of them, give
of such sale or mortgage. a bond, in a sum to be fixed by the court, conditioned
Exceptions: for the payment of said obligations within such time as
Under the following circumstances, the probate the court directs.
court may issue writs of execution:
1. To satisfy the distributive shares of devisees, May the court hear and determine questions as to
legatees, and heirs in possession of the advancement made by decedent?
decedent’s assets; Yes, Questions as to advancement made, or alleged
2. To enforce payment of the expenses of partition; to have been made, by the deceased to any heir may
and be heard and determined by the court having
3. To satisfy the costs when a person is cited for jurisdiction of the estate proceedings.
examination in probate proceedings.
Effect of a final decree of Distribution?
May the court authorize any person to dispose of
the properties of the estate? A final decree of distribution of the estate of a
Ans: Only the executor or administrator of the estate. deceased person vests the title to the land of the
estate in the distributes.
Is an heir or distribute liable for outstanding
claims against the estate? Where the court has validly issued a decree of
Heirs are not required to respond with their own distribution and the same has become final, the
property for the debts of their deceased ancestors. validity or invalidity of the project of partition
But even after the partition of the estate, the heirs becomes irrelevant. (Vda. De Kolayco v. Tengco,
and distributes are liable individually for the payment 207 SCRA 600).
of all lawful outstanding claims against the estate in
proportion to the amount or value of the property When does a probate court lose jurisdiction of an
they have respectively received from the estate. estate under Administration?
The probate court lose jurisdiction of an estate under
What may the court do if a contingent claim filed administration only after the payment of all debts and
is valid? the remaining estate delivered to the heirs entitled to
receive the same.
PART I. AS PROVIDED UNDER THE RULES OF
The finality of the approval of the project of COURT
partition by itself alone does not terminate the
proceeding. Rules 92 to 97 of the Rules of Court limit its
application only to guardianship of incompetents
As long as the order of the distribution of the who are not minors pursuant to AM No. 03-02-05
estate has not been complied with, the probate SC.
proceedings cannot be deemed closed and
terminated. (Guilas v. Judge of CFI Pampanga, 43 PART II. UNDER ADMINISTRATIVE CIRCULAR
SCRA 111)
N0. 03-02-05-SC OTHERWISE KNOWN AS “THE
RULE 91 RULE ON GUARDIANSHIP OF MINORS.”
This rule which became effective
ESCHEAT
on May 1, 2003, governs guardianship of
minors.
1. WHAT IS THE CONCEPT OF ESCHEAT?
It is a proceeding whereby the real and 1. WHICH COURT HAS JURISDICTION OVER
personal property of a deceased person GUARDIANSHIP PROCEEDINGS?
become the property of the State upon his In guardianship proceedings involving in-
death without leaving a will or legal heirs. competents who are not minors, the Regional
It is not an ordinary action, but a special Trial Court where he resides has jurisdiction
proceeding, and commenced by petition and pursuant to the provisions of Batas Pambansa
not by complaint. 129 as amended.

2. Venue? In guardianship of minors, it is the Family

Court where the minor resides.
A petition to declare as escheated a parcel
of land owned by a resident of the Philippines 2. VENUE IN GUARDIANSHIP CASES (RULE
who died intestate and without heirs or 92)
persons entitled to the property is to be filed at
the place where the deceased person last Venue is the place of residence of the minor
resided. or incompetent person.

However, if the minor or incompetent

GUARDIANSHIP resides outside the Philippines (non-resident),
the petition may be filed in the Regional Trial
Define Guardianship
It is a trust relation of the most sacred character, in Court of the place where the property of such
which one person called a “guardian”acts for another minor or incompetent may be situated.
the “ward” whom the law regards as incapable of
managing his own affairs.
RULE 93 APPOINTMENT OF
A guardianship is designed to further the ward’s well-
being not that of the guardian. It is intended to GUARDIANS
preserve the ward’s property, as well as to render any
assistance that the ward may personally require.
1. ENUMERATE THE FACTORS CONSIDERED
Guardian ad litem IN APPOINTING A GUARDIAN.
A guardian ad litem is any competent person
appointed by the court to prosecute or defend a The factors taken into account in the
minor, insane or person declared to be incompetent, selection of a suitable guardian are:
in an action in court.
a) the financial situation,
Basis of Guardianship
Where minors are involved, the state acts as parens b) the physical condition,
patriae. It is the duty of protecting the rights of c) the sound judgment,
persons or individuals who because of age or d) prudence and trustworthiness,
incapacity are in an unfavorable position vis a vis e) the moral character and conduct, and the
other parties. (Nery de Leon v. Rosario Lorenzo, et
present and past history of a prospective
al.,G.R. No. L-23376, April 1, 1972, 44 SCRA 431).
appointee, as well as the probability of
A guardian is a person in whom the law has his being able to exercise the powers
entrusted the custody and control of the person or and duties of guardian for the full period
estate or both of an infant, insane or other person during which guardianship is necessary.
incapable of managing his own affairs.
(Francisco v. CA, 127 SCRA 371).
 the children.
RULE 96
“TENDER-AGE PRESUMPTION”
GENERAL POWERS AND DUTIES OF
GUARDIANS 1. There is express statutory
recognition that, as a general rule, a mother
is to be preferred in awarding custody of
1. WHAT ARE THE GENERAL POWERS AND
children under the age of seven. The caveat
DUTIES OF A GUARDIAN?
in Article 213 of the Family Code cannot be
The general powers and duties of a ignored, except when the court finds cause
guardian are as follows: to order otherwise.
a) Have the care and custody of the 2. The so-called “tender-age
person of the ward, and the presumption” under Article 213 of the Family
management of his estate, or the Code may be overcome only by compelling
management of the estate only, as evidence of the mother’s unfitness.
the case may be (Section 1);
3. The mother has been declared
b) Pay the debts of ward (Section 2); unsuitable to have custody of her children in
c) Settle accounts, collect debts and one or more of the following instances:
appear in actions for ward (Section neglect, abandonment, unemployment,
4); immorality, habitual drunkenness, and drug
addiction, maltreatment of the child, insanity
d) Manage the estate of the ward
or affliction with a communicable disease.
frugally, and apply the proceeds to
maintenance of the ward (Section 4); 4. But sexual preference or moral
laxity alone does not prove parental neglect
e) Render verified inventory within 3
or incompetence. Not even the fact that a
months after his appointment and
mother is a prostitute or has been unfaithful
annually thereafter upon application
to her husband would render her unfit to
of interested persons (Section 7);
have custody of her minor child. To deprive
f) Must present his account to the court the wife of custody, the husband must
for settlement and allowance clearly establish that her moral lapses
(Section 8). have had an adverse effect on the welfare of
the child or have distracted the offending
“THE BEST INTEREST OF THE CHILD” spouse from exercising proper parental
a. Primary Consideration care. JOYCELYN PABLO-GUALBERTO v. CRISANTO
RAFAELITO GUALBERTO, G.R. No. 156254, June 28,
1. The principle of “best interest of 2005
the child” pervades Philippine cases
involving adoption, guardianship, support,
personal status, minors in conflict with the TENDER AGE PRESUMPTION
law, and child custody.
1. DOES THE SECOND PARAGRAPH OF
2. In these cases, it has long been ARTICLE 213 OF THE FAMILY CODE
recognized that in choosing the parent to APPLY ONLY TO LEGITIMATE
whom custody is given, the welfare of the CHILDREN?
minors should always be the paramount
consideration. No, it is does not limit its application to
legitimate children. This provision of the law
3. Courts are mandated to take into
known as the tender age presumption is
account all relevant circumstances that
likewise applicable to illegitimate children.
would have a bearing on the children’s
well-being and development. Article 213 of the Family Code provides:
“In case of separation of the parents,
4. Aside from the material resources parental authority shall be exercised by
the parent designated by the Court. The
and the moral and social situations of each Court shall take into account all relevant
parent, other factors may also be considerations, especially the choice of
considered to ascertain which one has the the child over seven years of age, unless
the parent chosen is unfit.
capability to attend to the physical,
educational, social and moral welfare of No child under seven years of age shall
 be separated from the mother unless the longer necessary.
court finds compelling reasons to order
otherwise.”
- Guardianship over minors
In the recent case of Renalyn A. Masbate The ward has come of age or has died
and Spouses Renato Masbate and Marlyn
Masbate, vs. Ricky James Relucio, G.R. No. Grounds for Removal of guardian:
235498, July 30, 2018, Leonen, J, the Supreme a. Insanity;
Court ruled that the second paragraph of Article b. Incapable of discharging the trust;
213 of the Family Code, does not distinguish c. Unsuitability
d. Wasted or mismanaged the property
between legitimate and illegitimate children – and
of the ward;
hence, does not factor in whether or not the
e. Failure to render an account for 30
parents are married – in declaring that "no child days after it is due;and
under seven (7) years of age shall be separated f. Failure to make a return for 30 days
from the mother unless the court finds compelling after it is due;
reasons to order otherwise." "Ubi lex non distinguit
nec nos distinguere debemos.” When the law
RULE 98
Trustees
makes no distinction, The Court also ought not to
recognize any distinction.

RULE 102
PART II. UNDER ADMINISTRATIVE
CIRCULAR N0. 03-02-05-SC HABEAS CORPUS

RULE ON GUARDIANSHIP OF MINORS

1. CASES WHERE HABEAS CORPUS IS
EXTENDED.
1. WHAT IS THE ORDER OF PREFERENCE
IN APPOINTING A GUARDIAN, IN DE- Under Section 1, the writ of habeas corpus
FAULT OF PARENTS OR A COURT-AP- shall extend to all cases of illegal confinement or
POINTED GUARDIAN PURSUANT TO detention by which any person is deprived of his
SECTION 6? liberty, or by which the rightful custody of any
The order of preference shall be as follows: person is withheld from the person entitled
thereto except as otherwise expressly provided
— the surviving grandparent and in case by law.
several grandparents survive, the
court shall select any of them taking 2. MAY A WIFE SECURE A WRIT OF HABEAS
into account all relevant CORPUS TO COMPEL HER HUSBAND TO
considerations; LIVE WITH HER IN CONJUGAL BLISS?
— the oldest brother or sister of the The answer is no.
minor over twenty-one years of age, a. No court is empowered as a judicial
unless unfit or disqualified; authority to compel a husband to
— the actual custodian of the minor over livewith his wife. Coverture cannot be
twenty-one years of age, unless unfit enforced by compulsion of a writ of
or disqualified; and habeas corpus carried out by sheriifs or
— any other person, who in the sound any other mesne process. This is a
discretion of the court, would serve matter beyond judicial authority and is
the best interests of the minor. best left to the man and woman’s free
choice. Ilusorio vs. Bildner, G.R.
No. 139789, 332 SCRA, May 12, 2000
RULE 97 b. To justify the grant of the petition, the
Termination of Guardianship restraint of liberty must be an illegal
and involuntary deprivation of
When is guardianship is terminated? freedom of action. The illegal
restraint of liberty must be actual and
- Guardianship over incompetents effective, not merely nominal or
Judicially determined that the person is no moral. (Erlinda K. Ilusorio v. Erlinda I.
longer incompetent or guardianship is no Bildner and Sylvia K. Ilusorio, G.R. No.
 139808 May 12, 2000) delayed and execution of any decision thereon
3. CAN A HUSBAND REFUSE TO SEE HIS must be expedited as soon as possible since any
WIFE WITHOUT THREAT OF ANY PENALTY form of delay, may jeopardize the very rights
ATTACHED TO THE EXERCISE OF HIS RIGHT? these writs seek to immediately protect (Lt.
Colonel Rogelio Boac, et al. v. Erlinda T. Cadapan,
Yes, in case the husband refuses to see
et al., G.R. Nos. 184461-62, 184495,187109, May
his wife for private reasons, he is at liberty to
do so without threat of any penalty attached to 31, 2011)
the exercise of his right.
7. IN A CASE WHERE COURTS HAVE
In the case at bar, the Court of Appeals CONCURRENT JURISDICTION, MAY A PARTY
missed the fact that the case did not involve HAVE THE FREEDOM OF CHOICE OF COURT
the right of a parent to visit a minor child but FORUM?
the right of a wife to visit a husband. In case
the husband refuses to see his wife for private
reasons, he is at liberty to do so without threat No, although the Supreme Court, the
of any penalty attached to the exercise of his Court of Appeals and the Regional Trial Courts
right. (Ilusorio vs. Bildner, G.R. No. 139789, 332 have concurrent jurisdiction to issue writs of
SCRA, May 12, 2000) certiorari, prohibition, mandamus, quo warranto,
habeas corpus and injunction, such concurrence
4. ARE THERE INSTANCES WHERE A WRIT does not give the petitioner unrestricted freedom
of choice of court forum. It is subject to the
OF HABEAS CORPUS MAY BE ISSUED
doctrine on hierarchy of courts (Lihaylihay, vs. The
EVEN IF THE DETENTION IS BY VIRTUE Treasurer of the Philippines et al., G.R. No. 192223, July
OF A JUDGMENT? 23, 2018, Leonen, J.).

Yes, the rule that habeas corpus may not

8. IS CONGRESS CONSTITUTIONALLY
be availed of if the detention is by virtue of a
MANDATED TO CONVENE IN JOINT SESSION
valid judgment is not absolute. FOLLOWING THE
PRESIDENT'SPROCLAMATION OF MARTIAL
The writ may be allowed as a post-
LAW AND/OR SUSPENSION OF THE PRIVILEGE
conviction remedy when the proceedings OF THE WRIT OF HABEAS CORPUS UNDER
leading to the conviction were attended by any ARTICLE VII, SECTION 18 OF THE 1987
of the following exceptional circumstances: CONSTITUTION?

1. there was a deprivation of a No, the plain language of the subject

constitutional right resulting in the constitutional provision does not support the
restraint of a person; petitioners' argument that it is obligatory for the
Congress to convene in joint session following
2. the court had no jurisdiction to impose the President's proclamation of martial law
the sentence; or and/or suspension of the privilege of the writ of
habeas corpus, under all circumstances.
3. the imposed penalty was excessive,
thus voiding the sentence as to such Congress is not constitutionally
excess. (Samuel Barredo y Golani v. Hon. mandated to convene in joint session except to
Vicente Vinarao, Director, Bureau of
vote jointly to revoke the President's
declaration or suspension. By the language of
Corrections, G.R. No. 168728, August 02,
Article VII, Section 18 of the 1987 Constitution,
2007)
the Congress is only required to vote jointly to
revoke the President's proclamation of martial
5. MAY HABEAS CORPUS BE RESORTED TO law and/or suspension of the privilege of the
WHERE RIGHTFUL CUSTODY IS writ of habeas corpus. (Alexander A. Padilla,
WITHHELD FROM A PERSON ENTITLED Rene A.V. Saguisag, Christian S. Monsod, Loretta
THERETO? Ann P. Rosales, et. al. Respondent, G.R. No.
231694,July 25, 2017).
Habeas corpus may be resorted to in cases
where rightful custody is withheld from a 9. DOES THE WAIVER UNDER ARTICLE 125 OF
person entitled thereto under Article 211 of the THE RPC GIVE THE RIGHT TO DETAIN A
PERSON INDEFINITELY?
Family Code.
No, waiver does not give the State the
6. IS A MOTION FOR EXECUTION NECESSARY
right to detain a person indefinitely. The waiver
TO EFFECT A HABEAS CORPUS DECISION? of Article 125 must coincide with the prescribed
period for preliminary investigation as
No, there is no need to file a motion for mandated by Section 7, Rule 112 of the Rules of
execution for habeas corpus decision. Since Court. Detention beyond this period violates the
the right to life, liberty and security of a person accused's constitutional right to liberty.
is at stake, the proceedings should not be
The Court ruled that a detainee under
such circumstances must be promptly
released to avoid violation of the constitutional It was precisely this time element that
right to liberty, despite a waiver of Article 125, prompted the Constitutional
if the 15- day period (or the thirty 30- day period Commission to eliminate the requirement
in cases of violation of R.A. No. 9165 ) for the of concurrence of the Congress in the
conduct of the preliminary investigation initial imposition by the President of
lapses. martial law or suspension of the privilege
of the writ of habeas corpus.
This rule also applies in cases where
the investigating prosecutor resolves to 1. Past events may be considered as
dismiss the case, even if such dismissal was justifications for the declaration and/or
appealed to the DOJ or made the subject of a suspension as long as these are
motion for reconsideration, reinvestigation or connected or related to the current
automatic review. (In the Matter of the Petition situation existing at the time of the
For Issuance of Writ Of Habeas Corpus With declaration.
Petition for Relief, Integrated Bar of the Philippines
Pangasinan Legal Aid and Jay-Ar R. Senin, Terrorism or acts attributable to terrorism may
Petitioners vs. Department Of Justice, et, al., G.R. be equivalent to actual rebellion and the
No. 232413, July 25, 2017). requirements of public safety sufficient to
declare martial law or suspend the privilege of
the writ of habeas corpus.
IT IS WITHIN THE POWER OF THE PRESIDENT
TO SUSPEND THE WRIT OF HABEAS CORPUS .
CASE: RELEASE OF PETITIONERS FROM
LAGMAN vs. MEDIALDEA DETENTION RENDERS THE PETITION MOOT.
(G.R. No. 231658, July 4, 2017,
Del Castillo, J.)
Pedro S. Agcaoili, Jr.,et. al., petitioners, Maria
Imelda Josefa "Imee" R. Marcos, co-petitioner,
DOCTRINES: vs. Representative Rodolfo C. Farinas, et. al.,
Respondents, July 3, 2018, G.R. No. 232395,
a. The President deduced from the facts Tijam, J.
available to him that there was an armed public
uprising, the culpable purpose of which was to DOCTRINE: With the subsequent release of all
remove from the allegiance to the Philippine the petitioners from detention, their petition for
Government a portion of its territory and to habeas corpus has been rendered moot. The
deprive the Chief Executive of any of his rule is that courts of justice constituted to pass
powers and prerogatives, leading the President upon substantial rights will not consider
to believe that there was probable cause that questions where no actual interests are
the crime of rebellion was and is being involved and thus, will not determine a moot
committed and that public safety requires the question as the resolution thereof will be of no
imposition of martial law and suspension of the practical value.
privilege of the writ of habeas corpus.

b. The recommendation of, or WHEN DOES A PETITION FOR WRIT OF

consultation with, the Secretary of HABEAS CORPUS BECOME MOOT AND
National Defense, or other high-ranking ACADEMIC?
military officials, is not a condition for
the President to declare martial law.
Supervening events may render the
petition for habeas corpus moot and academic.
A plain reading of Section 18, Article VII
of the Constitution shows that the
President's power to declare martial law A moot and academic case is one that
is not subject to any condition except for ceases to present a justiciable controversy by
the requirements of actual invasion or virtue of supervening events, so that a
rebellion and that public safety requires declaration thereon would be of no practical
it. Besides, it would be contrary to common use or value and that generally, courts decline
sense if the decision of the President is jurisdiction over such case, or dismiss it on
made dependent on the recommendation of ground of mootness.
his mere alter ego. Rightly so, it is only on
the President and no other that the exercise In one case, petitioners are all military
of the powers of the Commander-in-Chief men. The Court ruled that any resolution of the
under Section 18, Article VII of the petitions to annul the Memorandum and Letter
Constitution is bestowed. Order No. 758, to restrain the Special General
Court Martial and to order the release of the
c. It cannot be overemphasized that time petitioners from confinement would be of no
is paramount in situations necessitating practical value since as early as 2009, Special
the proclamation of martial law or General Court Martial No. 2 already absolved the
suspension of the privilege of the writ petitioners of the charges under the Articles of War,
of habeas corpus.
 also known as Julian Lin Wang, to be
Special General Court Martial No. 2 has amended/corrected as Julian Lin Wang v. Cebu
long been dissolved and the petitioners were City Civil Registrar, G.R. No. 159966, March 30,
already released from confinement. (Col. Orlando
E. De Leon, PN (M) vs. Lt. Gen.. Esperon, Jr., 2005)
(AFP), and Special General Court Martial No. 2,
GR. No.176394, October 21, 2015, Jardaleza, J.). 2. WHAT MUST EXIST BEFORE A CHANGE OF
NAME MAY BE EFFECTED?

THE RULE ON CUSTODY OF MINORS AND

WRIT OF HABEAS CORPUS IN RELATION TO A Change of Name is a privilege and not a
CUSTODY OF MINORS matter of right, such that a “proper and
A.M. No. 03-04-04-SC reasonable cause” must exist before it may be
authorized. In granting or denying a petition for
change of name under Rule 103, the question of
1. ENUMERATE THE REQUISITES FOR THE “proper and reasonable cause” is left to the
sound discretion of the Court through a
GRANT OF THE WRIT OF HABEAS COR-
judicious evaluation of the sufficiency and
PUS INVOLVING CUSTODY OF MINORS? propriety of the justifications advanced in
The requisites for the valid grant of the writ support thereof (EMELITA BASILIO GAN,
Petitioner, v. REPUBLIC OF THE PHILIPPINES,
where rightful custody over a minor is withheld Respondent, G.R. No. 207147, September 14,
from a person lawfully entitled therein are as 2016)
follows:
1. The petitioner has the right of custody 3. WHAT ARE THE GROUNDS DEEMED AS
over the minor child; PROPER AND REASONABLE CAUSE?
2. The rightful custody over the minor is The Court enumerated several recognized
being withheld by the respondent; grounds that can be invoked by a person
desirous of changing his name, viz:
3. That it serves the best interest of the
minor child to be in the custody of the (a) when the name is ridiculous,
petitioner rather than with the dishonorable or extremely
difficult to write or pronounce;
respondent.

(b) when the change results as a

legal consequence such as
RULE 103 legitimation;
CHANGE OF NAME (c) when the change will avoid confusion;

1. IS CHANGE OF NAME A MATTER OF RIGHT? (d) when one has continuously used and
been known since childhood by a
No, the Court has had occasion to express Filipino name, and was unaware of
the view that the State has an interest in the alien parentage;
(e) a sincere desire to adopt a Filipino
names borne by individuals and entities for name to erase signs of former
purposes of identification, and that a change of alienage, all in good faith and without
name is a privilege and not a right, so that prejudicing anybody; and
before a person can be authorized to change (f) when the surname causes
embarrassment and there is no
his name given him either in his certificate of showing that the desired change of
birth or civil registry, he must show proper or name was for a fraudulent purpose or
reasonable cause, or any compelling reason that the change of name would
prejudice public interest (ERIC
which may justify such change. Otherwise, the
SIBAYAN CHUA, Petitioner, v.
request should be denied. (In re: Petition for REPUBLIC OF THE PHILIPPINES,
change of name and/or correction/cancellation of Respondent, G.R. No. 231998,
entry in civil registry of Julian Lin Carulasan Wang November 20, 2017).

4. WHEN DOES RULE 103 APPLY?

In petitions for change of name, a person
avails of a remedy to alter the "designation by
which he is known and called in the community
in which he lives and is best known." When
granted, a person's identity and interactions are
affected as he bears a new "label or appellation
for the convenience of the world at large in
addressing him, or in speaking of, or dealing
with him." Judicial permission for a change of surname desired by the applicant, not because
name aims to prevent fraud and to ensure a he would thereby acquire certain family ties
record of the change by virtue of a court with them but because the existence of such
decree. ties might be erroneously impressed on the
public mind (Republic of the Philippines v. Merlyn
The proceeding under Rule 103 is also an
action in rem which requires publication of the Mercadera through Attorney-in-Fact, Evelyn
order issued by the court to afford the State Oga,
and all other interested parties to oppose the G.R. No. 186027, December 8, 2010).
petition. When complied with, the decision
binds not only the parties impleaded but the 7. DISCUSS THE CONSEQUENCE OF A
whole world. As notice to all, publication GRANT TO CHANGE NAME.
serves to indefinitely bar all who might make
an objection. "It is the publication of such a. A mere change of name would not
notice that brings in the whole world as a party cause a cause in one’s existing family
in the case and vests the court with relations, nor create new family rights and
jurisdiction to hear and decide it." duties where none exists before.

b. Neither would it affect a person’s legal

5. DIFFERENTIATE THE “CHANGE OF capacity, civil status or citizenship. What
NAME” UNDER RULE 103 FROM RULE
would be altered is the word or group of words
108.
by which he is identified and distinguished
from the rest of his fellow men (Ang Chay v.
The "change of name" contemplated Republic, 34 SCRA 224).
under Article 376 and Rule 103 must not be
confused with Article 412 and Rule 108. A c. A change of name granted by the court
change of one's name under Rule 103 can be
affects only the petitioner. A separate petition
granted, only on grounds provided by law. In
order to justify a request for change of name, for change of name must be filed for his wife
there must be a proper and compelling reason and children. (Secan kok v. Republic, L-27621,
for the change and proof that the person August 30, 1973).
requesting will be prejudiced by the use of his
official name. To assess the sufficiency of the REPUBLIC vs COSETENG-MAGPAYO
grounds invoked therefor, there must be (G.R. No. 189476, February 2, 2011)
adversarial proceedings (Republic vs.. Michelle
Gallo, G.R. No. 207074, January 17, 2018). DOCTRINE: The change being sought in
respondent’s petition goes so far as to affect his
In petitions for correction, only clerical,
legal status in relation to his parents. It seeks to
spelling, typographical and other innocuous
change his legitimacy to that of illegitimacy. Rule
errors in the civil registry may be raised.
Considering that the enumeration in Section 2, 103 then would not suffice to grant respondent’s
Rule 108 also includes "changes of name," the supplication.
correction of a patently misspelled name is
covered by Rule 108. Suffice it to say, not all RULE 108
alterations allowed in one's name are confined
under Rule 103. Corrections for clerical errors CANCELLATION OR CORRECTION OF ENTRIES
may be set right under Rule IN THE CIVIL REGISTRY
108. (Republic vs.. Michelle Gallo,
1. WHAT IS AN APPROPRIATE ADVERSARY
Respondent. G.R. No. 207074, January 17, PROCEEDING?
2018)
Rule 108 of the Rules of Court provides
6. WHAT MAY CONSTITUTE AS A the procedure for the correction of substantial
PROPER GROUND FOR OBJECTION TO changes in the civil registry through an
CHANGE OF NAME? appropriate adversary proceeding.

Essentially, a change of name does An adversary proceeding is defined as

not define or effect a change of one’s existing one "having opposing parties; contested, as
family relations or in the rights and duties distinguished from an ex parte application, one
flowing therefrom. It does not alter one’s of which the party seeking relief has given legal
warning to the other party, and afforded the
legal capacity or civil status.
latter an opportunity to contest it." (Petition for
Correction Of Entry (Change of Family Name in the
However, “there could be instances Birth Certificate of Felipe C. Almojuela as Appearing
where the change applied for may be open to in the Records of the National Statistics Office),
objection by parties who already bear the Felipe C. Almojuela, Petitioner vs. Republic of the
Philippines, Respondent, G.R. No. 211724, August 4. MAY THE PROPER COURT EXERCISE
JURISDICTION TO ENTERTAIN PETITIONS FOR
24. 2016) CHANGE OR CORRECTION OF FIRST NAME
AND DATE BIRTH?
2. DOES RULE 108 LIMIT ITSELF TO
SUMMARY PROCEEDING OF CORRECTION No, the local city or municipal civil
OF CLERICAL ERRORS IN THE CIVIL registrar or consul general has the primary
REGISTRY? jurisdiction to entertain petitions for change or
correction of first name and birth date,
No, this rule in "names," however, does pursuant to R.A. 9048.
not operate to entirely limit Rule 108 to the
correction of clerical errors in civil registry
5. MAY THERE BE AN INSTANCE WHERE A
entries by way of a summary proceeding. COURT MAY PASS UPON PETITIONS FOR
The authority for allowing substantial CHANGE OR CORRECTION OF FIRST NAME
AND DATE BIRTH?
errors in other entries like citizenship, civil
status, and paternity, to be corrected using
It is only when such petition is denied
Rule 108 provided there is an adversary that a petitioner may either appeal to the civil
proceeding. "After all, the role of the Court registrar general or file the appropriate petition
under Rule 108 is to ascertain the truths with the proper court.
about the facts recorded therein." (Republic
vs.. Michelle Gallo, Respondent. G.R. No. 6. WHICH COURT HAS JURISDICTION ON
207074, January 17, 2018). PETITIONS FILED UNDER RULE 108?

IN WHAT INSTANCE MAY RULE 103 The verified petition must be filed before the
AND RULE 108 APPLY IN CHANGE OR Regional Trial Court where the corresponding
CORRECTION OF FIRST NAME? civil registry is located.

A person may now change his or her first 7. ENUMERATE THE PARTIES WHO MAY BE
name or correct clerical errors in his or her IMPLEADED TO A CANCELLATION OR
name through administrative proceedings. CORRECTION OF AN ENTRY PROCEEDING.
Rules 103 and 108 only apply if the
administrative petition has been filed and The persons who must be made parties
later denied. (Republic vs.. Michelle Gallo, to a proceeding concerning the cancellation or
Respondent. G.R. No. 207074, January 17, correction of an entry in the civil register
2018). are:for correction under Rule 108 of the Rules
of Court is limited to changes in entries
3. IN A PETITION FOR A SUBSTANTIAL containing harmless and innocuous errors.
CORRECTION OF ENTRY, MUST THE LOCAL
CIVIL REGISTRAR BE IMPLEADED? 10. SHOULD A PETITION FOR THE CORREC-
TION OR CHANGE OF ENTRIES IN ONE’S
Yes, the local civil registrar must be
BIRTH CERTIFICATE BE GRANTED BY REA-
impleaded since he is an indispensable party
without whom no final determination of the SON OF “SEX CHANGE”?
case can be had. No. Since the statutory language of the
Civil Register Law was enacted in the early
The failure to strictly comply with the 1900s and remains unchanged, it cannot be
above-discussed requirements of Rule 108 of argued that the term “sex” as used then is
the Rules of Court for correction of an entry in
something alterable through surgery or
the civil registrar involving substantial and
controversial alterations renders the entire something that allows a post-operative male-to-
proceedings therein null and void. female transsexual to be included in the
category “female.” Thus, there is no legal basis
The local civil registrar is thus required for his petition for the correction or change of
to be made a party to the proceeding. He is an entries in his birth certificate.
indispensable party, without whom no final
determination of the case can be had. As he 11. Rommel Jacinto Dantes Silverio v. Republic
was not imp leaded in this case much less of the Philippines,
given notice of the proceeding, the decision of
the trial court, insofar as it granted the prayer
for the correction of entry, is void. The
absence of an indispensable party in a case
renders ineffectual all proceedings
subsequent to the filing of the complaint
including the judgment.
 (l) the civil registrar, and gender of such persons, like respondent, is
fixed.
(2) all persons who have or claim any
interest which would be affected 2. To the person with Congenital Adrenal
thereby. (REPUBLIC vs. TIPAY, G.R. Hyperplasia (CAH) belongs the human right to
NO. 209527, February 14, 2018, Reyes the pursuit of happiness and of health, and to
JR., J.) him should belong the primordial choice of what
courses of action to take along the path of his
8. WHO ARE THE PARTIES THAT MAY
OPPOSE THIS PROCEEDING? sexual development and maturation.

The following are likewise entitled to

oppose the petition: 14. MAY A PETITION FOR RECOGNITION OF A
FOREIGN JUDGMENT BE MADE UNDER
(1) the civil registrar, and RULE 108?
(2) any person having or claiming
any interest under the entry Yes, since the recognition of a foreign
whose cancellation or correction judgment only requires proof of fact of the
is sought. judgment, it may be made in a special proceeding
for cancellation or correction of entries in the
There can be no doubt that when an
civil registry under Rule 108 of the Rules of
opposition to the petition is filed either by the Civil
Court. Rule 1, Section 3 of the Rules of Court
Registrar or any person having or claiming any
interest in the entries sought to be cancelled provides that “[a] special proceedings is a
and/or corrected and the opposition is actively remedy by which a party seeks to establish a
prosecuted, the proceedings thereon become status, a right, or a particular fact.” Rule 108
adversary proceedings. creates a remedy to rectify facts if a person’s life
which are recorded by the State pursuant to the
Thus, in the case of (Republic, Petitioner, Civil Register Law or Act No. 3753. These are
vs. Virgie (Virgel) L. Tipay, Respondent. G.R. No.
facts of public consequence such as birth, death,
209527, February 14, 2018, Reyes JR., J.) the
Republic incorrectly argued that the petition or marriage, which the State has an interest in
recording.
Change of gender on the ground of sex
reassignment surgery is not a valid ground. GERBERT CORPUS v. DAISYLYN STO.TOMAS
(G.R. No. 174689, October 22, 2007). G.R. No. 186571, August 11, 2010

12. ON THE OTHER HAND, MAY THE COURT DOCTRINE: The recognition of the foreign
GRANT A PETITION UNDER RULE 108 TO divorce decree may be made in a Rule 108
CHANGE THE GENDER OF A PERSON FROM proceeding itself, as the object of special
“FEMALE” TO “MALE” BY REASON OF proceedings (such as that in Rule 108 of the
CONGENITAL ADRENAL HYPERPLASIA Rules of Court) is precisely to establish the
(CAH)? status or right of a party or a particular fact.

Yes, as provided in the case of Republic v. REPUBLIC OF THE PHILIPPINES v.

Cagandahan, 562 SCRA 72, G.R. No. 166676, MERLINDA L. OLAYBAR
September 12, 2008 G.R. No. 189538, February 10, 2014

DOCTRINE: While the Court maintain that Rule

13. WHAT ARE THE PRINCIPLES LAID DOWN 108 cannot be availed of to determine the validity
BY THE SUPREME COURT IN THE CASE of marriage, the Court cannot nullify the
OF REPUBLIC V. CAGANDAHAN? proceedings before the trial court where all the
parties had been given the opportunity to contest
The principles are the following: the allegations of respondent; the procedures
were followed, and all the evidence of the
1. Where the person is biologically or parties had already been admitted and examined.
naturally intersex, the determining factor in his
gender classification would be what the Respondent indeed sought, not the nullification
individual, having reached the age of majority, of marriage as there was no marriage to speak of,
with good reason thinks of his/her sex; Sexual but the correction of the record of such marriage
development in cases of intersex persons to reflect the truth as set forth by the evidence.
makes the gender classification at birth Otherwise stated, in allowing the correction of the
inconclusive – it is at maturity that the subject certificate of marriage by cancelling the
wife portion thereof, the trial court did not, in any
way, declare the marriage void as there was no sum, the remedy and the proceedings regulating
marriage to speak of. change of first name are primarily administrative
in nature, not judicial.

CASE: RULE 108 AS THE APPROPRIATE 2. WHAT IS THE LEGAL EFFECT OF R.A. 9048
ADVERSARY PROCEEDING AND REASONS KNOWN AS THE CLERICAL ERROR ACT?
WHY RULE 108 IS NOT ALWAYS A
SUMMARY PROCEEDING Republic Act No. 9048 amended Articles
376 and 412 of the Civil Code, effectively
removing clerical errors and changes of the
REPUBLIC vs. VIRGIE (VIRGEL) L.
name outside the ambit of Rule 108 and putting
TIPAY, Respondent.
them under the jurisdiction of the civil
G.R. NO. 209527, FEBRUARY 14, 2018,
REYES, JR., J. register. (Republic vs.. Michelle Gallo,
Respondent. G.R. No. 207074, January 17,
2018).
Doctrine: It is true that in special
proceedings, formal pleadings and a hearing
may be dispensed with, and the remedy is
3. WHAT ENTRIES IN THE CIVIL REGISTRY
granted upon mere application or motion.
However, a special proceeding is not always ARE SUBJECT TO R.A. 9048?
summary. The procedure laid down in Rule No entry in a civil registry shall be changed
108 is not a summary proceeding per se. It or corrected without a judicial order except:
requires publication of the petition; it
mandates the inclusion as parties of all 1. for clerical or typographical errors of
persons who may claim interest which would first name; and
be affected by the cancellation or correction;
it also requires the civil registrar and any 2. change of first name or nickname.
person in interest to file their opposition, if
any; and it states that although the court may 4. WHICH GOVERNMENT BODY HAS
make orders expediting the proceedings, it is JURISDICTION TO EFFECT CHANGE OR
after hearing that the court shall either CORRECTION?
dismiss the petition or issue an order granting
The same can be corrected or changed by
the same.
concerned city or municipal civil registrar or
consul general.
Thus, as long as the procedural
requirements in Rule 108 are followed, it is the 5. IS THE CLERICAL ERROR ACT LIMITED TO
appropriate adversary proceeding to effect CORRECTION OF CLERICAL OR TYPOGRAPHI-
substantial corrections and changes in CAL ERRORS ONLY?
entries of the civil register.
No. The law is clear. It also applies to
change of first name or nickname.
THE CLERICAL ERROR ACT 6. DOES THE CLERICAL ERROR ACT APPLY
Republic Act No. 9048 TO CHANGE OF FULL NAME?
No. Change of full name is covered by Rule
103. The act is limited to clerical or
1. WHAT IS R.A. 9048? typographical errors and change of first name
or nickname.
RA 9048 now governs the change of first
name. It vests the power and authority to 7. WHERE IS THE FILING OF THE PETITION?
entertain petitions for change of first name to
the city or municipal civil registrar or consul 1. The petition may be filed with the local
general concerned. civil registry office of the city or municipality
where the record being sought to be corrected
Under the law, therefore, jurisdiction
over applications for change of first name is or changed is kept.
now primarily lodged with the aforementioned 2. In case the petitioner has already
administrative officers. The intent and effect of
the law is to exclude the change of first name migrated to another place in the country and it
from the coverage of Rules 103 (Change of would not be practical for such party, in terms
Name) and 108 (Cancellation or Correction of of transportation expenses, time and effort to
Entries in the Civil Registry) of the Rules of appear in person before the local civil registrar
Court, until and unless an administrative
petition for change of name is first filed and keeping the documents to be corrected or
subsequently denied. It likewise lays down the changed, the petition may be filed, in person,
corresponding venue, form and procedure. In with the local civil registrar of the place where
the interested party is presently residing or change in nationality.
domiciled.
The two (2) local civil registrars AMENDMENT TO R.A. 9048
concerned will then communicate to facilitate REPUBLIC ACT No. 10172
the processing of the petition. Effectivity date: September 3, 2012
1. Citizens of the Philippines who are
presently residing or domiciled in 1. WHAT IS THE LEGAL EFFECT OF R.A. 10172
foreign countries may file the same AMENDING R.A. 9048?
before the Philippine consulate office. In 2012, Republic Act No. 9048 was
amended by Republic Act 10172.
REPUBLIC v. LORENA SALI
In addition to the change of the first
(G.R. No. 206023, April 3, 2017 name, the day and month of birth, and the sex
J. Peralta) of a person may now be changed without
judicial proceedings. Republic Act No. 10172
DOCTRINE: The local city or municipal civil registrar or clarifies that these changes may now be
consul general has the primary jurisdiction to entertain administratively corrected where it is patently
petitions for change or correction of first name and birth clear that there is a clerical or typographical
date, pursuant to R.A. 9048. It is only when such mistake in the entry. (Republic vs.. Michelle
petition is denied that a petitioner may either appeal Gallo, Respondent. G.R. No. 207074, January 17,
to the civil registrar general or file the appropriate 2018).
petition with the proper court.
2. EXPLAIN THE TERM “VISIBLE TO THE
EYES OR OBVIOUS TO THE
8. ENUMERATE THE GROUNDS FOR CHANGE UNDERSTANDING." AS A CLERICAL OR
OF FIRST NAME OR NICKNAME UNDER TYPOGRAPHICAL ERROR UNDER REPUBLIC
ACT NO. 10172.
SECTION 4 OF THIS ACT.
By qualifying the definition of a clerical,
The petition for change of first name or typographical error as a mistake "visible to
nickname may be allowed in any of the the eyes or obvious to the understanding,"
the law recognizes that there is a factual
following cases:
determination made after reference to and
(1) The petitioner finds the first name or evaluation of existing documents presented.
nickname to be ridiculous, tainted with
Thus, corrections may be made even
dishonor or extremely difficult to write though the error is not typographical if it is
or pronounce; "obvious to the understanding," even if there
is no proof that the name or circumstance in
(2) The new first name or nickname has
the birth certificate was ever used.
been habitually and continuously used
by the petitioner and he has been
publicly known by the first name or 3. WHAT ARE THE ENTRIES IN THE BIRTH
nickname in the community; or CERTIFICATE THAT CAN BE CORRECTED?

(3) The change will avoid confusion. 1. clerical or typographical errors and
change of first name or nickname; (R.A.
9. WHAT IS THE EFFECT OF R.A. 9048 TO THE 9048) and
APPLICATION OF RULE 108?
2. . day and month in the date of birth or
Under this new law, “clerical or sex of a person where it is patently clear
that there was a clerical or
typographical errors and change of first name typographical error or mistake in the
or nickname” may be corrected or changed by entry. (R.A. 10172)
the concerned city or municipal registrar or
consul general, without need of any judicial
order. 4. WHAT ARE THE ENTRIES IN THE BIRTH
CERTIFICATE THAT CANNOT BE CHANGED?
(SEC. 2 (3), R.A. NO. 10172)
10. DOES R.A. 9048 APPLY TO CHANGE IN
NATIONALITY? 1. nationality;
2. age; or
No, Republic Act. No. 9048 provides in 3. status of the petitioner.
Section 2 (3) that a summary administrative
proceeding to correct clerical or typographical
errors in a birth certificate cannot apply to a
5. WHAT ARE THE REQUIREMENTS FOR government physician attesting to
CORRECTION OF DATE OF BIRTH (day or the fact that the petitioner has not
month) OR THE SEX OF THE PERSON? (SEC.5, undergone sex change or sex
R.A. NO. 10172) transplant.

No petition for correction of 2. The petition for change of first name

erroneous entry concerning the date of or nickname, or for correction of
birth or the sex of a person shall be erroneous entry concerning the day and
entertained except: month in the date of birth or the sex of a
person, as the case may be, shall be
published at least once a week for two
1. if the petition is accompanied by
(2) consecutive weeks in a newspaper of
earliest school record or earliest
general circulation.
school documents such as, but not
limited to, medical records, baptismal
3. The petitioner shall submit a
certificate and other documents
certification from the appropriate law
issued by religious authorities;
enforcements, agencies that he has no
pending case or no criminal record.
and in case of change of gender,
the petition is accompanied by a 4. The petition and its supporting papers
certification issued by an accredited shall be filed in three (3) copies.

PART II. COMPARATIVE TABLES

1. COMPARATIVE TABLE ON RULE 103, RULE 108, R.A. 9048 AND R.A. 10172:

Rule 103 Rule 108 R.A. 9048 R.A. 10172

Name of Law Change of Name Cancellation/Correction of Clerical Error Act Amendment to R.A.
Entries in the Civil 9048
Registry
Subject Change of full Change or corrections in Change of first Correction of clerical
Matter name (substantial the civil entries name and nickname or typographical
corrections) (substantial corrections) and civil entries errors in the day and
(only typographical month in the date of
or clerical errors) birth or sex of a
person

Who may File A person desiring Any person interested in Any person having Same in R.A. 9048
to change his any act, event, order or direct and personal
name. (Section 1) decree concerning the interest in the
civil status of persons correction of a
which has been recorded clerical or
in the civil register. typographical error
(Section 1) in an entry and/or
change of first
name or nickname.
(Section 3)
Venue RTC of the RTC of city or province 1. Local civil registry 1. Local civil registry
province in which where the corresponding office of the city or office of the city or
petitioner resides civil registry is located. municipality where municipality where
for 3 years prior to the record being the record being
filing, or, in the City sought to be sought to be
of Manila, to the corrected or corrected or
Juvenile and changed is kept; changed is kept;
Domestic
Relations Court. 2. Local civil
registrar of the 2. Local civil registrar
place where the of the place where
interested party is the interested party
presently residing or is presently residing
domiciled; or domiciled;

3.Philippine 3.Philippine
Consulate. Consulate.

Contents of (a) That the (a) That the petitioner has (a) Facts necessary (a) Facts necessary
petition petitioner has been been a bona fide resident to establish the to establish the
a bona fide of the province where the merits of the merits of the petition;
resident of the petition is filed for at least petition;
province where the three (3) years prior to the (b) Facts that shall
petition is filed for date of such filing; (b) particular show affirmatively
at least three (3) erroneous entry or that the petitioner is
years prior to the (b) The cause for which entries, which are competent to testify
date of such filing; the change of the sought to be to the matters stated
petitioner’s name is corrected and/or the in the petition.
(b) The cause for sought; change sought to
which the change (c) The name asked for. be made. The petition shall be
of the petitioner’s (Section 2) supported with the
name is sought; The petition shall be following documents:
(c) The name supported with the
asked for. (Section following (1) A certified true
2) documents: machine copy of the
certificate or of the
(1) A certified true page of the registry
machine copy of the book containing the
certificate or of the entry or entries
page of the registry sought to be
book containing the corrected or
entry or entries changed;
sought to be
corrected or (2) At least two (2)
changed; public or private
documents showing
(2) At least two (2) the correct entry or
public or private entries upon which
documents showing the correction or
the correct entry or change shall be
entries upon which based; and
the correction or
change shall be (3) Other documents
based; and which the petitioner
or the city or
(3) Other municipal civil
documents which registrar or the
the petitioner or the consul general may
 city or municipal consider relevant
civil registrar or the and necessary for
consul general may the approval of the
consider relevant petition. (Section 3)
and necessary for
the approval of the No petition for
petition. (Section 5) correction of
erroneous entry
concerning the date
of birth or the sex of
a person shall be
entertained except:

-if the petition is

accompanied by
earliest school
record or earliest
school documents
such as, but not
limited to, medical
records, baptismal
certificate and other
documents issued
by religious
authorities;
nor shall any entry
involving change of
gender corrected
except:

- if the petition is
accompanied by a
certification issued
by an accredited
government
physician attesting to
the fact that the
petitioner has not
undergone sex
change or sex
transplant.

Furthermore, the
petitioner shall
submit a certification
from the appropriate
law enforcement
agencies that he has
no pending case or
no criminal record.
Grounds 1. Name is Upon good and valid 1. The petitioner Clerical or
ridiculous, tainted grounds, the following finds the first name typographical error
with dishonor and entries in the civil register or nickname to be
extremely difficult may be cancelled or ridiculous, tainted
to write or corrected. with dishonor or
pronounce; extremely difficult to
write or pronounce;
 2. Consequence of
change of status; 2. The new first
name or nickname
3. Necessity to has been habitually
avoid confusion; and continuously
used by the
4. Having petitioner and he
continuously used has been publicly
and been known known by that by
since childhood by that first name or
a Filipino name, nickname in the
unaware of her community; or
alien parentage;
3. The change will
5. A sincere desire avoid confusion.
to adopt a Filipino (Section 4)
name to erase
signs of former
alienage all in
good faith and
without prejudicing
anybody.
Kind of Judicial Summary proceeding Administrative Administrative
proceeding Proceeding This can be converted to proceeding proceeding
an adversarial proceeding
if there are substantial
changes and affect the
status of an individual.

Notice and At least once a At least once a week for At least once a At least once a week
Publication week for three three consecutive weeks week for two (2) for two (2)
consecutive weeks in some newspaper of consecutive weeks consecutive weeks
in some general circulation (notice (publish the whole in a newspaper of
newspaper of hearing) affidavit) general circulation
circulation (notice
of hearing)
Who The Solicitor The Civil Registrar The Civil Registrar Same in R.A. 9048
participates General or the or the Consul.
on the part of proper provincial
the or city fiscal shall
Government appear on behalf
of the Government
of the Republic.
Where to Appeal decision Appeal decision with the Appeal decision to Same in R.A. 9048
appeal with the Court of Court of Appeals. the Civil Registrar
Appeals. General (head of
NCSO).

2. COMPARATIVE TABLE ON JURISDICTION AND VENUE IN SPECIAL PROCEEDINGS

 Kinds of Special Proceedings Jurisdiction and Venue

1. Settlement of Estate 1. RTC or MTC (depending on the gross value

(Rule 73) of the estate) of the province where the
deceased last resided.

2. In case the decedent is a non-resident of the

Philippines at the time of his death, venue lies
in any province in which he had an estate.

2. Escheat 1. RTC of province where the deceased last

(Rule 91) resided.
2. In case the decedent is a non-resident of the
Philippines at the time of his death, venue lies
in any province in which he had an estate.

3. Guardianship

a. Rule on Guardianship of Minors 1. Family Court of province or city where the

(A.M. No. 03-02-05-SC) minor actually resides.
2. If the minor resides in a foreign country, in
the Family Court of the province or city where
his property or any part thereof is situated

b. Guardianship over incompetent persons who

are not minors under the Rules of Court 1. RTC of the province or city where
(Rules 92-97) incompetent person last resided.
2. If the incompetent person resides in a
foreign country, in the Family Court of the
province or city where his property or any part
thereof is situated.

4. The Rules of Adoption

(A.M. No. 02-6-02-SC)

a. If filed under the Domestic Adoption Act 1. Family Court of province or city where
(R.A. 8552) prospective adoptive parents reside.
2. If the petition is for Rescission of Adoption
of the Adoptee—Family Court of the city or
province where the adoptee resides.(Sec.19)

b. If filed under the Inter-Country Adoption Act 1. Family Court having jurisdiction over the
(R.A. 8043) place where the child resides or may be found
(filed by a foreign national or Filipino citizen
permanently residing abroad).
2. It may be filed directly with the Inter-Country
Adoption Board.
5. Habeas Corpus

a. Habeas Corpus for illegal confinement or 1. If filed with RTC, where detainee is
detention (Rule 102) detained. SC, CA and RTC have concurrent
jurisdiction.
*The writ of habeas corpus issued by the RTC
shall be enforceable only within its judicial
region (Sec. 21, BP 129).
b. Habeas Corpus for custody of Minors
(A.M. No. 03-04-04 SC) 1. Family courts have exclusive jurisdiction
(Family Courts Act of 1997 [RA 8309]).
2. Under the Rule on Custody of Minors and
Writ of Habeas Corpus in relation to Custody of
Minors (A.M. No. 03-04-04-SC), the petition
may be filed with SC, CA or any of its
members, and, if so granted, the writ shall be
enforceable anywhere in the Philippines.

6. Amparo (A.M. No. 07-9-12-SC) SC, CA and Sandiganbayan, RTC

If with the RTC:
The place where the threat, act or omission
was committed or any of its elements occurred.
(Sec.3)

7. Habeas Data (A.M. No. 08-1-16-SC) SC, CA and Sandigabayan when the action
concerns public data files of government
offices
If with the RTC:
1. where petitioner resides; or
2. where respondent resides; or
3. that which has jurisdiction over the place
where data or information is gathered,
collected or stored, at the option of petitioner.
(Sec.3)

8. Change of name (Rule 103):

RTC of the province where the petitioner
resides.(Sec.1)

9. Absentees (Rule 107):

RTC of place where absentee resided
before his disappearance.(Sec.1)

10. Cancellation or Correction of Entries RTC of the province where the corresponding
(Rule 108): Local Civil Registrar of place is located.(Sec.1)

11. The Clerical Error Act (R.A. 9048) 1. Local civil registry office of the city or
municipality where the record being sought to
be corrected or changed is kept;

2.Local civil registrar of the place where the

 interested party is presently residing or
domiciled;

3.Philippine Consulates

3. DISTINCTION BETWEEN WRITS OF HABEAS CORPUS, AMPARO AND DATA:

WRIT OF HABEAS CORPUS AMPARO HABEAS DATA

LEGAL BASIS The Rule was drafted pursuant Same Same

to the Supreme Court’s
constitutional power to
promulgate rules for the
protection and enforcement of
constitutional rights
(Constitution, Art. VIII, Sec.
5[5]).

GOVERNING LAW Rule 102 A.M. No. 07-9-12-SC A.M. No. 08-1-16-SC

Definition “Habeas corpus” is a Latin It is a remedy available to It is a remedy available to

phrase which literally means any person whose right to any person whose right to
“you have the body.” Basically, life, liberty, and security has privacy in life, liberty or
it is a writ directed to the been violated or is security is violated or
person detaining another, threatened with violation by threatened by an unlawful
commanding him to produce an unlawful act or omission act or omission of a public
the body of the prisoner at a of a public official or official or employee, or of a
designated time and place, with employee, or of a private private individual or entity
the day and cause of his individual or entity. The writ engaged in the gathering,
capture and detention, to do, covers extralegal killings and collecting or storing of data
submit to, and receive enforced disappearances or or information regarding the
whatsoever the court or judge threats thereof. person, family, home and
awarding the writ shall consider correspondence of the
in that behalf. aggrieved party.

REMEDY FOR Sec. 1 Sec. 1 Sec. 1

To all cases of illegal To any person whose right to To any person whose right to
confinement or detention: life, liberty and security is privacy in life, liberty and
1. By which any person is violated or threatened with security is violated or
deprived of his liberty; or violation by an unlawful act threatened with violation by
2. By which the rightful custody or omission of a public official an unlawful act or omission
of any person is withheld from or employee, or of a private of a public official or
the person entitled thereto. individual or entity. employee, or of a private
individual or entity engaged
in:
1. Gathering
2. Collecting
3. Storing of data or
information regarding the
person family, home and
correspondence of the
aggrieved party.

PETITIONER Sec. 3 Sec. 2 Sec. 2

By the party for whose relief it By the aggrieved party, or by General rule:
is intended, or by some other any qualified person or entity The aggrieved party
person in his behalf in the order provided in Sec. Except:
2 In cases of extralegal killings
 and enforced
disappearances:
1. Immediate family;
2. In default of no. 1,
ascendant, descendant or
collateral relative within the
4th civil degree of
consanguinity or affinity.

VENUE Sec. 2 Sec. 3 Sec. 3

Where the plaintiff resides or SC, CA and SB: Manila; SC, CA and SB: Manila;
where the defendant resides, RTC of the place where the RTC:
or in the case of non-resident threat, act or omission was 1. Where the petitioner
defendant, where he may be committed or any of its resides;
found, at the election of the elements occurred. 2. Where the respondent
plaintiff. resides;
3. Which has jurisdiction
over the place where data or
information is gathered etc.

All at the option of the

petitioner.
EXTENT OF SC CA and SB: anywhere in the Anywhere in the Philippines Anywhere in the Philippines
ENFORCEABILITY Philippines
RTC: only within its judicial
district
PROHIBITED Sec. 11 Sec. 13.
PLEADINGS AND (a) Motion to dismiss; (a) Motion to dismiss;
MOTIONS (b) Motion for extension of (b) Motion for extension of
time to file return, opposition, time to file opposition,
affidavits, position paper and affidavit, position paper and
other pleadings; other pleadings;
(c) Dilatory motion for (c) Dilatory motion for
postponement; postponement;
(d) Motion for a bill of (d) Motion for a bill of
particulars; particulars;
(e) Counterclaim or cross- (e) Counterclaim or cross-
claim; claim;
(f) Third-party complaint; (f) Third-party complaint;
(g) Reply; (g) Reply;
(h) Motion to declare (h) Motion to declare
respondent in default; respondent in default;
(i) Intervention; (i) Intervention;
(j) Memorandum; (j) Memorandum;
(k) Motion for (k) Motion for
reconsideration of reconsideration of
interlocutory orders or interim interlocutory orders or
relief orders; and interim relief orders; and
(l) Petition for certiorari, (l) Petition for certiorari,
mandamus or prohibition mandamus or prohibition
against any interlocutory against any interlocutory
order. order.

EFFECT OF FAILURE Sec. 12 Sec. 14

TO FILE A RETURN In case the respondent fails In case the respondent fails
to file a return, the court, to file a return, the court,
justice or judge shall proceed justice or judge shall
to hear the petition ex parte. proceed to hear the petition
ex parte.

INTERIM Sec. 12 Sec. 14

RELIEFS 1.Unless for good cause
shown, the hearing is (a) Temporary Protection
 adjourned, in which event the Order.
court shall make an order for
the safe keeping of the person (b) Inspection Order.
imprisoned or restrained as the
nature of the case requires; (c) Production Order

2. The court or judge must be (d) Witness Protection Order.

satisfied that the person’s
illness is so grave that he
cannot be produced without
any danger.

JUDGMENT Sec. 15 Sec. 18 Sec. 16

When the court or judge has The court shall render Same with WOA with an
examined into the cause of judgment within ten (10) addition that upon finality,
caption and restraint of the days from the time the the judgment shall be
prisoner, and is satisfied that petition is submitted for enforced by the sheriff or
he is unlawfully imprisoned or decision. If the allegations in any lawful officers as may
restrained, he shall forthwith the petition are proven by be designated by the court,
order his discharge from substantial evidence, the justice or judge within 5
confinement, but such court shall grant the privilege working days.
discharge shall not be effective of the writ and such reliefs as
until a copy of the order has may be proper and
been served on the officer or appropriate; otherwise, the
person detaining the prisoner. If privilege shall be denied.
the officer or person detaining
the prisoner does not desire to
appeal, the prisoner shall be
forthwith released.

APPEAL Sec. 15 in relation to Sec. 3 of Sec. 19 Sec. 19

Rule 41 and Sec. 39 of BP 129: Rule 45 by petition for review Same as WOA
48 hours from notice of on certiorari with peculiar
judgment appealed from by features:
ordinary appeal 1. Appeal may raise
questions of fact or law or
both;
2. Period of appeal shall be 5
working days from the date
of notice of the adverse
judgment;
3. Same priority as habeas
corpus cases.