TITLE XI.

SUMMARY JUDICIAL PROCEEDINGS

IN THE FAMILY LAW


Chapter 1: SCOPE OF APPLICATION

Article 238. Until modied by the Supreme Court, the procedural rules provided for in this Title
shall apply in all cases provided for in this Code requiring summary court proceedings. Such
cases shall be decided in an expeditious manner, without regard to technical rules. (n)

Chapter 2: SEPARATION IN FACTBETWEEN HUSBAND AND WIFE

Article 239. 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 veried petition
may be led in court alleging the foregoing facts. 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 nal deed
duly executed by the parties shall be submitted to and approved by the court. (n)

JUDICIAL APPROVAL. If the property regime is the absolute community of property or
the conjugal partnership of gains, the spouses are co-owners or partners of the
community property or partnership property. A spouse cannot alienate, dispose or
encumber community or conjugal property without the consent of the other spouse. In
case they are separated in fact or one spouse abandons the other, this will not generally
affect the absolute community of property or the conjugal partnership of gains. Hence, if
any of the spouses desires to enter into any transaction, like the sale of co-owned
properties, he or she can go to court for approval of the sale if he or she cannot obtain
the consent of the other spouse. The petition should be veried, which means that it
should be under oath stating that the petitioner has caused the preparation and the ling
of the petition, that he or she has read the contents of the petition and that he or she
knows that the contents are true of his or her own knowledge and belief. An unveried
petition cannot be given consideration by the court. The approval of the court shall
protect the transacting spouse and third persons who are directly affected by the
transaction.

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

DAMAGES. A claim for damages usually entails a lengthy process. Because time is of
the essence of the court case contemplated by the law in these cases, the law provides
that damages, except costs of the proceedings, may be litigated only in a separate
action.

Article 241. 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. (n)

PROPER COURT. Republic Act Number 8369, otherwise known as the Family Courts
Act of 1997, established the family courts which are exclusively tasked to take
cognizance of family cases such as custody of children, annulment or nullity of cases,
adoption and termination of parental authority. Specically, the law provides that
summary judicial proceedings brought under the Family Codes hall be heard in the
proper family court with jurisdiction to try the case (Section 5[j] of R.A. No. 8369).

Article 242. Upon the ling 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. (n)

DUE PROCESS. Once the petition is led, due process requires that the other party,
called the respondent, shall be given the chance to comment on the petition and to
show cause why the petition should not be granted. The respondent likewise may
nevertheless manifest his or her agreement in which case the suit shall become moot
and academic.

Article 243. 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. (n)

PRELIMINARY CONFERENCE. The preliminary conference is aimed at having the
parties settle amicably their differences on the transaction involved so that the judicial
proceedings can be further shortened. During the initial conference, the parties will not
be assisted by counsel. The judge will conduct the proceedings personally. Lawyers are
not allowed to be present so that the proceedings will not become unduly adversarial
which can lead to a protracted case. Since the issue pertains to very personal family
decisions, it is better to let the parties decide the issues by themselves. However, if the
judge nds out that the issues are complicated and that any of the spouses does not
really have a complete understanding of the transaction and its consequences, lawyers
may be allowed to assist the parties in the next hearings.

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

NON-APPEARANCE. Due process requires that the other party must be heard. Hence,
the court shall inquire into the reasons for the failure of the spouse whose consent is
sought to appear in court.

Article 245. 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. (n)

EX-PARTE PROCEEDING. In case the non-consenting spouse does not appear
despite efforts from the court requiring him or her to attend, the case will proceed ex
parte or even without the presence of the non-consenting party. Judgment will be
rendered on the basis of the facts and evidence presented. The judge may grant or
deny the petition. In all cases, the judge shall endeavor to protect the interest of the
non-appearing spouse.

Article 246. If the petition is not resolved at the initial conference, said petition shall be decided
in a summary hearing on the basis of afdavits, 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. (n)

SUMMARY PROCEEDING. The case shall be summary and the manner by which it will
proceed shall depend on the appreciation of the situation by the judge. The judge can
decide it on mere afdavits or he or she may require testimonies from the parties. He or
she may even decide what sort of testimony he or she wants to know and also what sort
of witnesses should be presented.

Article 247. The judgment of the court shall be immediately nal and executory. (n)

FINALITY. Usually, a decision becomes nal and executory after the lapse of 15 days
from the time the parties receive a copy of the decision. Since time is of the essence,
the decision of the court shall be immediately nal and executory in cases under this
Title. However, the aggrieved party can still le a case with the higher court to annul the
decision on the basis that he or she was not really given due process. However, without
an injunction from the higher court, the decision can be executed even if it is pending in
the said higher court.

Article 248. The petition for judicial authority to administer or encumber specic 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. (n)

ADMINISTRATION OF PROPERTY. Article 248 refers to paragraph 3 of both Articles
100 and 127 which essentially provides that the separation in fact between husband
and wife shall not affect either the absolute community of property or the conjugal
partnership of gains except that, among others, in the absence of sufcient community
or conjugal 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 specic separate
property of the other spouse and use the fruits or proceeds thereof to satisfy the latters
share.

Chapter 3: INCIDENTS INVOLVING PARENTAL AUTHORITY

Article 249. Petitions led under Articles 223,225 and 235 of this Code involving parental
authority shall be veried. (n)

VERIFIED PETITIONS. Petitions under Articles 223 and225 must be veried. Article
223 deals with a case seeking a court order providing for disciplinary measures over the
child. Article 225deals with a case for the approval of the bond required of parents who
exercise parental authority over the property of their children. Article 235 on
emancipation has already been repealed by Republic Act No. 6809.

Article 250. Such petitions shall be led in the proper court of the place where the child
resides.(n)

VENUE. The venue of the case shall be the court of the place where the child resides.
This is for the benet and convenience of the child.

Article 251. Upon the ling 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.
(n)

NOTIFICATION. The court must undertake everything possible for the benet of the
child and must issue decisions having the paramount interest of the child as the
inexible criterion. Hence, it is the duty of the court to notify people who have parental
authority over the children to appear in court so that the court can itself probe these
people on the real necessity for the ling of the case. For instance, in an action seeking
the disciplinary measures to be imposed on the child, it may turn out that the problem
does not lie with the child but with the parent who is grossly abusive. In such a case, the
court may even terminate or suspend the parental authority of the abusing parent.

Article 252. The rules in Chapter 2 hereof shall also govern summary proceedings under this
Chapter insofar as they are applicable. (n)

PROCEEDINGS. As much as practicable and insofar as they are applicable, the
proceedings in the court cases referred to in Articles 223 and 225 shall likewise be
summary in nature. This is for the benet of the child. For instance, corrective measures
which can be imposed on an incorrigible child must be done at the earliest possible time
so that, in case of commitment of the child, the same can be quickly implemented with
the end in view of returning the child to his or her parents as soon as possible. Also, in
case of court approval of the bond required of a parent administering the property of his
or her child, the proceeding must be summary in order that this legal measure for the
further protection of the child can be immediately undertaken by the parent.

Chapter 4: OTHER MATTERS SUBJECT TO SUMMARY PROCEEDINGS

Article 253. The foregoing rules in Chapters 2and 3 hereof shall likewise govern summary
proceedings led under Articles 41, 51, 69, 73, 96, 124and 217, insofar as they are applicable.

OTHER CASES. Summary proceedings shall also be the procedure under Article 41
which deals with the judicial declaration of a spouse as presumptively dead, under
Article 51 which deals with an action of a child for the delivery of his or her presumptive
legitime, under Article 69 which deals with the judicial determination of the family
domicile in case of disagreement of the spouses, under Article73 which deals with the
court adjudication of the validity of a spouses objection to the profession of the other
spouse, and under Article 217which deals with the court order entrusting foundlings,
abandoned, neglected or abused children and other children similarly situated to heads
of childrens homes, orphanages and similar institutions duly accredited by the proper
government agency. Summary procedure likewise applies to Articles 96 and124
involving the annulment of the husbands decision in the administration and enjoyment
of the community or conjugal property in case the husbands decision is in conict with
the wifes decision. However, the appointment of one of the spouses as the sole
administrator under the second paragraphs of Articles 96 and124 shall be in a summary
proceeding under Article 253 of the Family Code only if it involves a situation where the
other spouse is absent or separated in fact or has abandoned the other or the consent
is withheld. If the subject spouse is an incompetent who is in a comatose or semi-
comatose condition, a victim of stroke, cerebrovascular accident, without motor and
mental faculties, and with diagnosis of brain stem infarct, the proper remedy is a judicial
guardianship proceeding under Rule 93 of the 1964 Revised Rules of Court and not a
summary proceeding under the Family Code (Uy v. Court of Appeals, G.R. No. 109557,
November 29, 2000). In any event, should the administering spouse desire to sell real
property as such administrator of the community or conjugal property, he or she must
observe the procedure for the sale of the wards estate required of judicial guardians
under Rule 95 of the 1964 Revised Rules of Court, not the summary judicial
proceedings under the Family Code. This is so because, as the administrator spouse,
he or she must perform the duties of a guardian (Uy v. Court of Appeals,G.R. No.
109557, November 29, 2000).