Adopting a Child When One Partner Is Still Legally Married in the Philippines

Philippine legal article (updated to reflect the Domestic Administrative Adoption and Alternative Child Care framework)

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In the Philippines, adoption is now primarily an administrative process handled by the National Authority for Child Care (NACC) under the Domestic Administrative Adoption and Alternative Child Care Act (commonly referred to as the “Administrative Adoption Law”). The law preserves long-standing family-status rules: if you are married, adoption is ordinarily a joint act of both spouses (or at least requires the other spouse’s written consent). If you are not married to each other, you cannot adopt as a couple; at most, one person applies, subject to the spousal-consent rule if that person has an existing marriage.

When “one partner is still legally married,” there are three separate relationships to keep straight:

The subsisting marriage (to someone else).
The current relationship/partner (fiancé/fiancée, live-in, etc.).
The child (prospective adoptee).

Only (1) and (3) are legally relevant to eligibility and consent. The current partner has no legal status in the adoption unless and until you marry each other later (e.g., for a future step-parent adoption).

Who may adopt, in general

An adopter must:

Be of legal age and of good moral character, with no disqualifying criminal record.
Be emotionally, psychologically, and financially capable to support and care for a child.
Be at least 16 years older than the adoptee (with limited exceptions).
If married, comply with the joint adoption / spousal-consent rule (details below).

Foreigners and Filipinos abroad may adopt under additional residency and qualification rules; those are outside the core issue here, but note that domestic placement is prioritized before inter-country adoption.

Who may be adopted

A child legally available for adoption, typically supported by a Certificate Declaring a Child Legally Available for Adoption (CDCLAA) issued by NACC.
A relative within the fourth civil degree (e.g., niece/nephew, grandchild), subject to simplified pathways.
A step-child (child of your lawful spouse).
In limited circumstances, an adult (with consent and proof of a genuine parent-child relationship that began during minority).

The spousal-consent and joint-adoption rules, unpacked

Baseline rule (married adopter)

If you are married, you and your spouse must jointly adopt, or the adopting spouse must secure the written consent of the other spouse. This ensures the adoptee’s status is consistent within the family.

Recognized exceptions (when joint filing isn’t required)

Historically and under the current framework, joint filing is not required (but consent may still be) in limited scenarios, such as:

Step-parent adoption: One spouse adopts the child of the other spouse. The non-adopting spouse is the child’s biological or adoptive parent; their consent is required, but they need not be a co-petitioner.
Own child adoption: One spouse adopts his/her own illegitimate child to confer legitimate status, with the other spouse’s consent.

Key point: These exceptions presuppose that the two adults are married to each other. They do not allow a person who is still married to someone else to adopt with a new partner.

When the spouse’s consent is dispensable

In tightly defined situations, the law (and long-standing practice) allows authorities to dispense with spousal consent—for example, if the spouse is deceased, unknown, has abandoned the family, or is otherwise legally incapacitated (e.g., judicial declaration of absence, proven incapacity). These are fact- and evidence-driven; expect strict proof.

Separated in fact is not separated in law. Being estranged or living apart without a court decree does not remove the consent/joint-adoption requirement.

Practical scenarios when one partner is still legally married

The still-married person wants to adopt “together” with a new partner.
- Not allowed. Philippine adoption treats couples as spouses only. Unmarried partners cannot jointly adopt. The new partner has no legal standing in the application.
The still-married person wants to adopt alone.
- Possible but constrained. As a married person, they must either:
  - Jointly adopt with their legal spouse, or
  - Obtain the legal spouse’s written consent, or
  - Prove a recognized ground to dispense with that consent (e.g., spouse is judicially declared absent/incapacitated).
- If none of the above is viable, the application will typically not proceed.
“We’re just separated.”
- Separated in fact (no decree) does not change anything. The person is still married for adoption purposes.
There’s a decree of legal separation.
- Legal separation does not dissolve the marriage, but practice has allowed single-parent adoption by a legally separated spouse without the other spouse’s consent in some contexts—only if the decree is final and grounds (e.g., abandonment, violence) align with the child’s best interests. Expect close scrutiny and the NACC to assess whether spousal consent is still needed or dispensable based on the decree’s findings.
Marriage is annulled or declared void; the person is now single.
- Once the judgment is final, registered, and reflected in civil registry records, the person may adopt as a single applicant. If they later marry the current partner, the new spouse can pursue step-parent adoption of the child to unify status.
New partner wants to adopt now, alone.
- A partner who is unmarried and not currently married to someone else may apply as a single adopter—independently of the still-married partner. Authorities will probe the household composition, cohabitation, and moral-fitness issues, and may find risk factors if the arrangement indicates instability or legal complications (e.g., potential bigamy).

Moral fitness and criminal-law overlaps

Adoption decisions are best-interest-of-the-child determinations. Pending or probable criminal exposure (e.g., bigamy, concubinage/adultery) or protective-order histories can weigh heavily against approval because they raise stability and safety concerns for the child.
Even without criminal cases, a pattern of unstable family relationships, unresolved litigation, or concealment (e.g., simulated birth; misrepresentations in the home study) can be disqualifying.

The administrative adoption flow (domestic)

Inquiry & orientation with NACC or an accredited Child Caring/Placing Agency (CCPA).
Application with personal data, police/NBI clearances, medical and psychological evaluations, proof of income, and civil status documents (e.g., PSA marriage certificate, decrees if any).
Home Study Report (HSR) by a licensed social worker assessing capacity, motivations, home environment, and household members (including romantic partners who co-reside).
Child matching/Family selection (for non-relative adoptions) led by NACC/CCPA.
Supervised Trial Custody (STC)—commonly six months—with periodic social-worker visits and reports.
Issuance of the Administrative Adoption Order by the NACC if STC is successful and all legal consents/requirements are in order. A new record of birth is then issued by the PSA, listing the adopter(s) as parent(s).

Crucial for the “still-married” situation: At Step 2 and Step 3, the spousal-consent/joint-adoption issue is front-and-center. Applications are often stopped at intake if the married applicant lacks the other spouse’s consent and cannot show a legal ground to dispense with it.

Documents commonly required (high level)

Government-issued IDs; recent photos.
PSA copies of: birth certificate, marriage certificate, and any court decrees (annulment/nullity, legal separation, adoption orders, recognition of foreign judgments).
Proof of income and employment/business; income tax returns; property documents (if any).
Clearances: NBI, barangay, and sometimes local police.
Medical and psychological evaluation results.
Spousal written consent (if married), unless legally dispensed.
Consents from the adoptee (if of sufficient age, typically 10+), biological parents/guardian (unless rights are terminated or child is declared legally available), and from children (10+) of the adopter/adoptee.

Special pathways and corner cases

Relative and step-parent adoptions can have streamlined matching and may proceed even without a CDCLAA (depending on the degree of relationship and documentation), but consent rules still apply.
Rectification of simulated birth (for births simulated on or before March 29, 2019) follows a remedial route with strict compliance and social-worker assessment; again, marital-status honesty is essential.
Inter-country adoption remains subject to subsidiarity (domestic first) and to NACC evaluation; the spousal/joint rules mirror domestic expectations.

Strategic options if one partner remains legally married

Pursue a lawful change in civil status first
- Final nullity/annulment judgment (and civil-registry annotation) removes the spousal-consent barrier for that person’s single-parent adoption, and later allows step-parent adoption by the new spouse after marriage.
Check for a valid basis to dispense with spousal consent
- If the legal spouse is judicially declared absent or incapacitated, or has abandoned the family as established by competent evidence, present the decree/evidence to NACC and request dispensation. Expect rigorous vetting.
Have the unmarried partner adopt singly (if qualified)
- This avoids the spousal-consent problem, but it also means only that person becomes the child’s legal parent. If you later marry, the other partner may file a step-parent adoption to unify the child’s status—subject again to fitness and best-interest review.
Avoid misrepresentation
- Do not attempt to minimize or conceal the subsisting marriage, cohabitation, or household composition in the HSR. Discovery can lead to denial and possible legal exposure.

Frequently asked questions

Can we list both of us as adoptive parents if we’re not married to each other? No. Only spouses can adopt jointly. Unmarried partners cannot be co-adopters.

If my spouse and I are estranged and I can’t get consent, can I adopt anyway? Not under the baseline rule. You would need a legal ground recognized by law to dispense with consent (e.g., judicially declared absence/incapacity) or a final decree altering your civil status.

If my partner adopts singly now, can I add my name later? You cannot “add” a name, but after you legally marry your partner you can file a step-parent adoption (a separate proceeding) so that both spouses become the child’s legal parents.

Will my being still married hurt my partner’s single-adoption application? NACC will evaluate the whole household for stability, safety, and morality. A cohabitation involving a person still in a subsisting marriage can raise red flags; outcomes are case-specific.

Does legal separation help? A final decree of legal separation may support arguments to waive consent in some cases, especially if it judicially found abandonment or violence, but because the marriage still exists, expect close scrutiny and no guarantees.

Practical tips

Start with orientation at NACC or an accredited CCPA and be candid about civil-status facts.
Secure civil-status documents early (PSA copies, any court decrees).
If considering a single-adopter route, prepare for a thorough HSR that explains your support network and childcare plan.
If aiming to dispense with consent, consult counsel and gather formal, court-recognized proof (e.g., decree of absence).
Keep the focus on best interests of the child: stability, safety, permanence, and honest caregiving capacity.

Bottom line

If one partner is still legally married to someone else, the couple cannot adopt together.
The still-married person may adopt only with the legal spouse (jointly or with that spouse’s written consent)—or by proving a lawful ground to dispense with consent.
The unmarried partner may adopt singly if independently qualified, but the household’s legal and moral context will be scrutinized.
To adopt as a couple with your current partner, you must first regularize civil status (final annulment/nullity; then marry each other), or complete a two-step path (one adopts singly now; later, step-parent adoption).

Because individual facts (decrees, prior cases, household composition) can change outcomes, careful document review and case-specific legal advice are essential before filing.