< All Topics

M. Summary Judicial Proceedings in the Family Code

1. CONCEPT

a. Coverage

The procedural rules provided for Summary Judicial Proceedings in the Family Code shall apply as regards separation in fact between husband and wife, abandonment by one of the other, and incidents involving parental authority. (Article 238, Family Code)

1) Separation in fact

2) Abandonment by a spouse

When a husband and wife are separated in fact, or one has abandoned the other and one of them seeks judicial authorization for a transaction where the consent of the other spouse is required by law but such consent is withheld or cannot be obtained, a verified petition may be filed in court alleging the foregoing facts.(Article 239, Ibid.)

The petition shall attach the proposed deed, if any, embodying the transaction, and, if none, shall describe in detail the said transaction and state the reason why the required consent thereto cannot be secured. In any case, the final deed duly executed by the parties shall be submitted to and approved by the court. (Paragraph 2, Article 239 Ibid.)

The petition for judicial authority to administer or encumber specific separate property of the abandoning spouse and to use the fruits or proceeds thereof for the support of the family shall also be governed by these rules. (Article 248, Ibid.)

b. Incidents involving parental authority

Petitions filed under Articles 223, 225 and 235 of this Code involving parental authority shall be verified. (Article 249, Ibid.)

Such petitions shall be verified and filed in the proper court of the place where the child resides. (Article 250, Ibid.)

2. PROCEDURE

a. Jurisdiction

1) Family courts

Jurisdiction over the petition shall, upon proof of notice to the other spouse, be exercised by the proper court authorized to hear family cases, if one exists, or in the regional trial court or its equivalent sitting in the place where either of the spouses resides. (Article 241, Ibid.)

2) Verified petition

a) Separation in fact

b) Abandonment

When a husband and wife are separated in fact, or one has abandoned the other and one of them seeks judicial authorization for a transaction where the consent of the other spouse is required by law but such consent is withheld or cannot be obtained, a verified petition may be filed in court alleging the foregoing facts.(Article 239, Ibid.)

Petitions filed under Articles 223, 225 and 235 of this Code involving parental authority shall be verified. (Article 249, Ibid.)

c) Parental authority

Such petitions shall be verified and filed in the proper court of the place where the child resides. (Ibid.)

3) Court action

a) Separation in fact: show cause

b) Abandonment: show cause

Upon the filing of the petition, the court shall notify the other spouse, whose consent to the transaction is required, of said petition, ordering said spouse to show cause why the petition should not be granted, on or before the date set in said notice for the initial conference. The notice shall be accompanied by a copy of the petition and shall be served at the last known address of the spouse concerned. (Article 242, Ibid.)

c) Parental authority: court notice

Upon the filing of the petition, the court shall notify the parents or, in their absence or incapacity, the individuals, entities or institutions exercising parental authority over the child. (Article 251, Ibid.)

4) Preliminary conference

A preliminary conference shall be conducted by the judge personally without the parties being assisted by counsel. After the initial conference, if the court deems it useful, the parties may be assisted by counsel at the succeeding conferences and hearings. (Article 243, Ibid.)

5) Non-appearance, ex parte proceedings

In case of non-appearance of the spouse whose consent is sought, the court shall inquire into the reasons for his failure to appear, and shall require such appearance, if possible. (Article 244, Ibid.)

If, despite all efforts, the attendance of the non-consenting spouse is not secured, the court may proceed ex parte and render judgment as the facts and circumstances may warrant. In any case, the judge shall endeavor to protect the interests of the non-appearing spouse. (Article 245, Ibid.)

6) Summary hearing

If the petition is not resolved at the initial conference, said petition shall be decided in a summary hearing on the basis of affidavits, documentary evidence or oral testimonies at the sound discretion of the court. If testimony is needed, the court shall specify the witnesses to be heard and the subject-matter of their testimonies, directing the parties to present said witnesses. (Article 246, Ibid.)

7) Immediately final and executory

The judgment of the court shall be immediately final and executory. (Article 247, Ibid.)

8) Claims for damages

Claims for damages by either spouse, except costs of the proceedings, may be litigated only in a separate action.(Article 240, Ibid.)

3. APPLICABILITY TO OTHER SUMMARY PROCEEDINGS

The rules for Separation in Fact, Abandonment by a spouse, and Incidents involving Parental Authority shall likewise govern summary proceedings filed under Articles 41, 51, 69, 73, 96, 124 and 127, insofar as they are applicable. (Article 253, Ibid.)

a. Article 41

A marriage contracted by any person during subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present has a well-founded belief that the absent spouse was already dead. In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient.(Article 41, Ibid.)

For the purpose of contracting the subsequent marriage under the preceding paragraph the spouse present must institute a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse. (Parragraph 2, Article 41, Ibid.)

b. Article 51

In said partition, the value of the presumptive legitimes of all common children, computed as of the date of the final judgment of the trial court, shall be delivered in cash, property or sound securities, unless the parties, by mutual agreement judicially approved, had already provided for such matters. (Article 51, Ibid.)

The children or their guardian or the trustee of their property may ask for the enforcement of the judgment.(Paragraph 2, Article 51, Ibid.)

The delivery of the presumptive legitimes herein prescribed shall in no way prejudice the ultimate successional rights of the children accruing upon the death of either of both of the parents; but the value of the properties already received under the decree of annulment or absolute nullity shall be considered as advances on their legitime. (Paragraph 3, Article 51, Ibid.)

c. Article 69

The husband and wife shall fix the family domicile. In case of disagreement, the court shall decide.(Article 69, Ibid.)

The court may exempt one spouse from living with the other if the latter should live abroad or there are other valid and compelling reasons for the exemption. However, such exemption shall not apply if the same is not compatible with the solidarity of the family. (Paragraph 2, Article 69, Ibid.)

d. Article 73

Either spouse may exercise any legitimate profession, occupation, business or activity without the consent of the other. The latter may object only on valid, serious, and moral grounds. (Article 73, Ibid.)

In case of disagreement, the court shall decide whether or not:

1) The objection is proper; and

2) Benefit has occurred to the family prior to the objection or thereafter. If the benefit accrued prior to the objection, the resulting obligation shall be enforced against the separate property of the spouse who has not obtained consent. (Paragraph 2, Article 73, Ibid.)

The foregoing provisions shall not prejudice the rights of creditors who acted in good faith. (Paragraph 3, Article 69, Ibid.)

e. Article 96

The administration and enjoyment of the community property shall belong to both spouses jointly. In case of disagreement, the husband’s decision shall prevail, subject to recourse to the court by the wife for proper remedy, which must be availed of within five years from the date of the contract implementing such decision.(Article 96, Ibid.)

In the event that one spouse is incapacitated or otherwise unable to participate in the administration of the common properties, the other spouse may assume sole powers of administration. These powers do not include disposition or encumbrance without authority of the court or the written consent of the other spouse. In the absence of such authority or consent, the disposition or encumbrance shall be void. However, the transaction shall be construed as a continuing offer on the part of the consenting spouse and the third person, and may be perfected as a binding contract upon the acceptance by the other spouse or authorization by the court before the offer is withdrawn by either or both offerors. (Paragraph 2, Article 69, Ibid.)

f. Article 124

The administration and enjoyment of the conjugal partnership shall belong to both spouses jointly. In case of disagreement, the husband’s decision shall prevail, subject to recourse to the court by the wife for proper remedy, which must be availed of within five years from the date of the contract implementing such decision. (Article 124, Ibid.)

In the event that one spouse is incapacitated or otherwise unable to participate in the administration of the conjugal properties, the other spouse may assume sole powers of administration. These powers do not include disposition or encumbrance without authority of the court or the written consent of the other spouse. In the absence of such authority or consent, the disposition or encumbrance shall be void. However, the transaction shall be construed as a continuing offer on the part of the consenting spouse and the third person, and may be perfected as a binding contract upon the acceptance by the other spouse or authorization by the court before the offer is withdrawn by either or both offerors. (Paragraph 2, Article 124, Ibid.)

g. Article 127

GENERAL RULE:The separation in fact between husband and wife shall not affect the regime of conjugal partnership,

EXCEPTIONS:except that:

1) The spouse who leaves the conjugal home or refuses to live therein, without just cause, shall not have the right to be supported;

2) When the consent of one spouse to any transaction of the other is required by law, judicial authorization shall be obtained in a summary proceeding;

3) In the absence of sufficient conjugal partnership property, the separate property of both spouses shall be solidarily liable for the support of the family. The spouse present shall, upon petition in a summary proceeding, be given judicial authority to administer or encumber any specific separate property of the other spouse and use the fruits or proceeds thereof to satisfy the latter’s share. (Article 127, Ibid.)

4. SUPREME COURT’S AUTHORITY TO PROMULGATE RULES

Until modified by the Supreme Court, the procedural rules provided for in this Title shall apply as regards separation in fact between husband and wife, abandonment by one of the other, and incidents involving parental authority. (Article 238, Ibid.)

Previous L. Emancipation
Next N. Use-of-surnames
Table of Contents