file:spcpro_part11.htm

11. SUMMARY PROCEEDINGS UNDER
THE FAMILY CODE

1.  Summary Proceedings under the
Family Code

The cases shall be heard 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 parties or spouses resides. 241

1. Rationale

The summary remedy was thought of mainly because
of separated spouses. One of them usually has difficulty obtaining the consent
of the other spouse for a transaction where such consent is required.
Thereafter, it was felt that this summary remedy may as well apply to other
cases provided in the Family Code where court approval is needed.

2. Procedural rules

At the same time, however, there was the
apprehension that some people may not accept the fact that a piece of
legislation is providing for procedural rules which, according to them, is
within the exclusive authority of the Supreme Court. Hence, it was provided in
the Family Code that: Until modified by the Supreme Court, the procedural rules
in the Family Code govern all cases provided in the Code requiring court
proceedings. Such cases shall be decided in an expeditious manner without
regard to technical rules. 242

3. Coverage

Summary procedure may be used in cases provided
in Articles 239, 248, 223, 225, 235, 41, 51, 69, 73, 96, 124, 217, Family Code,
viz:

3.1 A verified petition may be filed to seek
judicial authorization for a transaction where the consent of an estranged
spouse is needed. 243
Claims for damages by either spouse, except costs, may be litigated only in a
separate action. 244

3.2 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 support of the family. 245

3.3 Petitions filed under Articles 223, 225 and
236 of the Family Code involving parental authority which shall be verified, to
be filed in the proper court of the place where the child resides. The court
shall notify the parents or, in their absence or incapacity, the individuals,
entities or institutions exercising parental authority over the child.

3.4 Summary proceedings filed under Articles 41,
51, 69, 96, 124 and 217, insofar as they are applicable.

4. Procedure

The summary procedure is set forth in certain
provisions of the Family Code (Arts. 239-247, 250-252, FC) as follows:

4.1 A verified petition

A verified petition setting forth the alleged
facts and attaching the proposed deed of the transaction involved. 246

4.2 Notice to interested persons

Notice shall be given to all interested persons
upon the filing of the petition.

4.3 Preliminary conference

The 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. 247

4.4 Requiring appearance

In case of non-appearance of the other party, the
court shall inquire into the reasons why and shall require such appearance, if
possible. 248

4.5 Ex-parte proceeding

If attendance is not secured, then the court may
proceed ex parte and render judgment as the facts and circumstances
warrant, but the court shall endeavor to protect the interests of the
non-appearing party.

4.6 Summary hearing

The case shall be heard on the basis of
affidavits, documentary evidence or oral testimonies at the sound discretion of
the court. 249

4.7 Testimony

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. 250

4.8 Judgment

The judgment of the court shall be immediately
executory. 251