Can Unmarried Partners Adopt If One Partner Is Still Married to Another? A Philippine Legal Perspective

Introduction

Adoption in the Philippines is a legal process designed to provide permanent family ties for children in need, prioritizing the child's best interest above all. Governed primarily by Republic Act No. 8552 (the Domestic Adoption Act of 1998) and related laws, the system imposes strict qualifications on prospective adopters to ensure stability, moral integrity, and capability to raise a child. A particularly complex scenario arises when unmarried partners seek to adopt, but one partner remains legally married to a third party. This situation intersects with family law, marital obligations, and moral standards under Philippine jurisprudence, where divorce is generally unavailable (except in cases involving Muslim Filipinos under the Code of Muslim Personal Laws). This article explores the legal feasibility, requirements, challenges, and implications of such adoption attempts, drawing from statutory provisions, administrative guidelines, and judicial interpretations.

Legal Framework Governing Adoption in the Philippines

Adoption laws in the Philippines emphasize the creation of a legitimate parent-child relationship. Key statutes include:

Republic Act No. 8552 (Domestic Adoption Act of 1998): This regulates the adoption of Filipino children by Filipino citizens or aliens residing in the Philippines. It outlines qualifications for adopters, the adoption process, and post-adoption rights.
Republic Act No. 8043 (Inter-Country Adoption Act of 1995): Applies to adoptions involving foreign adopters or Filipino children adopted abroad, but similar principles on adopter qualifications apply.
Family Code of the Philippines (Executive Order No. 209): Influences adoption through provisions on marriage, parental authority, and family relations. Article 183 of the Family Code allows adoption to confer legitimate status on the adopted child.
Administrative Orders from the Department of Social Welfare and Development (DSWD): The DSWD, as the central authority, issues guidelines on adoption procedures, including home studies and assessments.
Child and Youth Welfare Code (Presidential Decree No. 603): Reinforces the child's best interest principle and prohibits actions contrary to moral development.

The Supreme Court has also issued rules, such as A.M. No. 02-6-02-SC (Rule on Adoption), which streamlines court procedures for domestic and inter-country adoptions.

Central to all these is the requirement that adoption must serve the child's welfare, with adopters demonstrating emotional, financial, and moral fitness.

Qualifications for Adopters Under Philippine Law

To adopt, individuals or couples must meet specific criteria under RA 8552:

Age and Capacity: At least 27 years old (or 16 years older than the adoptee), in full possession of civil capacity and legal rights.
Residency and Citizenship: For domestic adoption, the adopter must be a Filipino citizen or an alien who has resided in the Philippines for at least three years. Joint adoption by spouses requires both to qualify.
Moral Character: Must be of good moral character, not convicted of any crime involving moral turpitude.
Emotional and Financial Stability: Capable of providing proper care, education, and support.
Marital Status for Joint Adoption: Spouses must jointly adopt, except where one spouse adopts the legitimate child of the other, or in cases of legal separation where the adopting spouse has custody.

Single individuals may adopt if they meet all other qualifications. However, the law presumes that married couples provide a more stable environment, and joint adoption by spouses is the norm unless exceptions apply.

The Scenario: Unmarried Partners with One Partner Still Married

In the Philippines, marriage is a special contract of permanent union (Family Code, Art. 1), and absolute divorce is not recognized for non-Muslim Filipinos. Dissolution of marriage occurs only through annulment, declaration of nullity, or legal separation. If one partner in an unmarried couple remains legally married to another person, several legal barriers arise for adoption:

1. Ineligibility for Joint Adoption

Requirement of Legal Marriage: RA 8552 explicitly requires that spouses adopt jointly. "Spouses" implies a valid, subsisting marriage. Unmarried partners, even in long-term cohabitation, do not qualify as spouses. The Supreme Court in cases like Republic v. Toledano (G.R. No. 94147, 1994) has emphasized that adoption by couples must reflect a legitimate marital union to ensure family stability.
Impact of Existing Marriage: If one partner is still married, they cannot legally marry their current partner without first obtaining an annulment or nullity decree. Attempting joint adoption as "partners" would be invalid, as it mimics a marital relationship without legal basis. This could be viewed as circumventing marriage laws, potentially leading to denial during DSWD evaluation.
Moral Turpitude Concerns: Cohabitation while one partner is married may constitute concubinage (Revised Penal Code, Art. 334) or adultery (Art. 333), crimes involving moral turpitude. Such convictions—or even allegations—disqualify adopters under RA 8552, Sec. 7. Even without criminal charges, DSWD home studies assess moral fitness, and extramarital relationships could be deemed detrimental to the child's moral upbringing.

2. Possibility of Single Adoption by One Partner

Single Adopter Option: An unmarried individual can adopt singly if qualified. Thus, the unmarried partner (not tied to a prior marriage) might proceed alone. However, if the couple lives together, the DSWD's home study would evaluate the household environment, including the presence of the married partner.
Challenges for the Married Partner: The partner who is still married could attempt single adoption, but their marital status complicates matters. Under RA 8552, a married person cannot adopt singly without the spouse's consent (unless exceptions like incapacity apply). The law requires joint adoption by spouses, so the married individual would need their legal spouse's written consent (RA 8552, Sec. 7). If the legal spouse refuses or cannot be located, adoption may be barred.
Household Assessment: DSWD social workers conduct thorough home studies, interviewing household members and assessing relationships. If the married partner is cohabiting with a new partner, this could raise red flags about stability and morality, potentially leading to unfavorable recommendations. The child's best interest doctrine (PD 603, Art. 3) prioritizes environments free from conflict or scandal.

3. Legal Separation or Annulment as Prerequisites

Legal Separation: Under the Family Code (Arts. 55-67), legal separation allows spouses to live apart but does not dissolve the marriage. A legally separated person remains married and cannot remarry. For adoption, they might adopt singly with court approval, but joint adoption with a new partner is impossible without dissolving the prior marriage.
Annulment or Nullity: These declare the marriage void or voidable, allowing remarriage. If the married partner obtains an annulment, they become legally single and can then marry their current partner, enabling joint adoption. However, annulment processes are lengthy, costly, and require grounds like psychological incapacity (Family Code, Art. 36, as interpreted in Republic v. Molina, G.R. No. 108763, 1997).
Time and Process: Annulment cases can take years, and during pendency, adoption attempts may be stalled. Post-annulment, the new couple must marry to qualify for joint adoption.

Procedural Aspects and Potential Outcomes

The adoption process involves:

Pre-Adoption Services: Counseling and seminars by DSWD-accredited agencies.
Application and Home Study: Submission of documents (birth certificates, marriage certificates if applicable, income proofs, character references). The home study report is crucial; any indication of an irregular relationship could result in denial.
Matching and Placement: If approved, the child is matched based on adopter suitability.
Trial Custody and Finalization: Six-month supervision, followed by court petition for adoption decree.

In the queried scenario, applications are likely to face rejection at the home study stage due to marital irregularities. Appeals can be made to the DSWD or courts, but success is rare without resolving the underlying marital status.

Challenges, Implications, and Related Considerations

Child's Best Interest: Courts and agencies prioritize this (RA 8552, Sec. 2). Environments with potential legal disputes (e.g., claims from the legal spouse) or moral controversies are avoided.
Rights of the Legal Spouse: The legal spouse may contest the adoption, arguing it affects community property or parental rights if biological children are involved.
LGBTQ+ Considerations: While not directly addressed in laws, same-sex partners face similar barriers, as marriage equality is not recognized (though single adoption by LGBTQ+ individuals is possible if qualified).
Inter-Country Adoption: Under RA 8043, similar qualifications apply, with added scrutiny for foreign elements. Unmarried partners with marital ties would likely be disqualified.
Alternative Options: Guardianship under the Family Code (Arts. 225-233) or foster care via DSWD might be alternatives, but these do not confer full parental rights like adoption.
Penalties for Misrepresentation: Falsifying marital status in applications can lead to criminal charges (e.g., perjury) and permanent disqualification.
Evolving Jurisprudence: While no specific Supreme Court ruling directly addresses this exact scenario, cases like Landingin v. Republic (G.R. No. 164948, 2006) underscore the need for truthful disclosures and moral integrity in adoption.

Conclusion

In summary, unmarried partners cannot jointly adopt in the Philippines if one remains married to another, as this violates requirements for legal marriage, joint adoption mandates, and moral character standards. Single adoption by one partner may be theoretically possible but is fraught with practical hurdles, including consent issues and home study scrutiny. Resolving the prior marriage through annulment or nullity is essential for any joint effort. Prospective adopters in such situations should consult legal experts and DSWD-accredited agencies early to navigate these complexities, always remembering that the process exists to safeguard vulnerable children rather than accommodate adult relationships. Reforms in family law, such as potential divorce legislation, could alter this landscape in the future, but under current statutes, caution and compliance are paramount.