Special Proceedings in The Philippines
The 1997 Rules of Civil Procedures define a special proceeding as “a remedy by which a party seeks to establish a status, a right, or a particular fact.” It is distinct from an ordinary legal “action” where one party files a suit against another party to seek redress for a wrong or an injury, or to protect his (the suing party’s) rights.
For example, if you’re renting out a property and the tenant refuses to pay rent or to lawfully vacate the property, you may file a civil “action” that would compel the tenant to pay the amount he owes or to leave the property.
On the other hand, if someone disappears without any trace for a significant period of time, an interested party may petition for a “declaration of absence” to fulfill certain legal requirements. This petition would fall under “special proceedings.”
A special proceeding is initiated by a petition, application, or a special pleading.
The Rules of Civil Procedures list down the cases where rules of special proceedings are provided. These are:
- Settlement of estate of deceased persons;
- Guardianship and custody of children;
- Rescission and revocation of adoption;
- Hospitalization of insane persons;
- Habeas corpus;
- Change of name;
- Voluntary dissolution of corporations;
- Judicial approval of voluntary recognition of minor natural children;
- Constitution of family home;
- Declaration of absence and death;
- Cancellation of correction of entries in the civil registry.
Distinguishing between filing a civil action and initiating a special proceeding can be difficult for someone without sufficient legal knowledge. If you are facing this kind of situation, get in touch with our lawyers at Duran & Duran-Schulze and get expert legal advice and assistance.
Here’s a quick look at some of the most important cases covered by special proceedings.
Adoption, Guardianship and Custody of Children
Petitions for adoption, guardianship and custody of a minor involve more or less the same parameters. Petitioners have to meet certain conditions, including their qualification, the area of jurisdiction and consent of adoption by the child and the child’s parents or legal guardians.
Adoption rules in the Philippines are embodied in the following:
- Republic Act 8552 or the Domestic Adoption Act of 1998 – applies to adoption of a Filipino child by Filipino citizens
- Republic Act 8043 or the Inter-Country Adoption Act of 1995 – applies to adoption of a Filipino child by foreign nationals
Cancellation or Correction of Entries in the Civil Registry and Name Change
Under Republic Act No. 9048, which was later amended to Republic Act 10172, also known as the Correct a Clerical or Typographical Error in an Entry and/or Change of First Name or Nickname on Civil Register (birth, marriage and other certificates) allows correction by the concerned city or municipal civil registrar without a judicial order. This corrects misspelled name or misspelled place of birth, mistake in the entry of day and month in the date of birth or the sex of the person or the like, which is visible to the eyes or obvious to the understanding.
Other more substantial corrections or changes such as nationality, age, or status of a person may be done by filing a petition under Rule 108 of the Rules of Court. Grounds meriting such petitions include:
- annulment of marriage
- acknowledgement or legitimization of natural children
- change of name (including first name and family name)
- loss or recovery of citizenship
Declaration of Absence and Death
If a person goes missing for two to five years (depending on whether there is danger at the time of disappearance), seven (for all purposes except succession) or ten years (for purposes of succession) without any news or notice about him, that person’s spouse, heirs, or qualified relatives or entities may petition a declaration of presumptive death either for the purposes of re-marriage or division of estate among heirs.
Habeas corpus is a petition seeking the court to release or present to the court a person believed to be illegally detained or confined, whether by government entities or civilians. It may also be applied in family law cases where a parent refuses to give the other parent access to their child.
The writ of habeas corpus compels the detaining person or entity to produce the body of the person detained, and to explain the cause and nature of the detention.
If the court finds the detention to be illegal or unauthorized, it may issue the privilege of the writ of habeas corpus, which orders the immediate release of the detained person.
Settlement of Estate of Deceased Persons
In the Philippines, any will, whether notarial or holographic, needs to go through probate before it can be effected. Probate is a process that establishes the validity of a will.
A will may be contested for various reasons, including the omission of compulsory heirs, proof that the testator was not of sound mind at the time of the will’s execution, or errors in the will.
In cases where the deceased left no will and no debts, the heirs may execute an extrajudicial settlement where they agree on the division of the estate without help from the courts or in case of sole heir, an affidavit of self-adjudication.
Voluntary Dissolution of Corporations
A corporation may cease its operations and existence for various reasons. Involuntary dissolution could come from an order by the Securities and Exchange Commission (SEC) for non-compliance to certain rules. Voluntary dissolution, on the other hand, may be the result of such factors as financial losses or the transition of the company to another business type.
Voluntary or involuntary dissolution must be executed with the SEC, as well as other relevant government agencies.
There are three kinds of voluntary dissolution:
- no creditors are affected
- creditors are affected, necessitating hearings and notices
- amending the articles of incorporation to shorten the corporate term
See us at Duran & Duran-Schulze Law for advice and assistance on closing a company.