Can Unmarried Partners Adopt When One Is Still Married? An Analysis Under Philippine Adoption Law

Introduction

In the Philippines, adoption is a legal process governed primarily by Republic Act No. 8552, also known as the Domestic Adoption Act of 1998, which focuses on domestic adoptions, and Republic Act No. 8043, the Inter-Country Adoption Act of 1995, for adoptions involving foreign elements. These laws aim to protect the best interests of the child while ensuring that prospective adopters meet stringent qualifications. A common query arises in non-traditional family setups: Can unmarried partners adopt a child when one partner remains legally married to someone else? This scenario often involves individuals who are separated but not divorced—since divorce is not generally available under Philippine law, except in specific cases involving Muslim Filipinos or foreign marriages—or those in de facto relationships. This article explores the legal barriers, exceptions, requirements, and implications of such situations, emphasizing that Philippine adoption law prioritizes legal marriage for joint adoptions and imposes restrictions on those with existing marital ties.

Legal Framework for Adoption in the Philippines

Philippine adoption law is child-centered, drawing from the 1987 Constitution (Article XV, Section 3), which mandates the State to protect the family as the basic social institution, and international conventions like the United Nations Convention on the Rights of the Child (UNCRC), to which the Philippines is a signatory. Key statutes include:

Republic Act No. 8552 (Domestic Adoption Act of 1998): Regulates the adoption of Filipino children by Filipino citizens or qualified aliens within the country.
Republic Act No. 8043 (Inter-Country Adoption Act of 1995): Governs adoptions where the adopter is a foreigner or a Filipino residing abroad.
Republic Act No. 10165 (Foster Care Act of 2012): Provides alternatives like foster care, which may be relevant for couples ineligible for adoption.
Republic Act No. 11222 (Simulated Birth Rectification Act of 2019): Allows rectification of simulated births but does not directly permit adoption by unqualified parties.
Implementing rules from the Department of Social Welfare and Development (DSWD), the Inter-Country Adoption Board (ICAB), and the National Authority for Child Care (NACC), which replaced the former Inter-Country Adoption Board and other bodies under Republic Act No. 11642 (Domestic Administrative Adoption and Alternative Child Care Act of 2022).

Under these laws, adoption creates a permanent parent-child relationship, severing ties with biological parents (except in step-parent adoptions). The process involves pre-adoption counseling, home studies, matching, supervised trial custody, and a court decree.

Eligibility Requirements for Adopters

To adopt, individuals must satisfy general qualifications under RA 8552, Section 7:

Be of legal age (at least 18 years old, though typically older in practice).
Possess full civil capacity and legal rights.
Demonstrate good moral character and no convictions for crimes involving moral turpitude.
Be emotionally, psychologically, and financially capable of caring for the child.
Be at least 16 years older than the adoptee (waivable in certain familial cases).
For aliens: Additional requirements like three years of continuous Philippine residency, diplomatic relations between countries, and certification of legal capacity to adopt.

These apply to both domestic and inter-country adoptions, with ICAB imposing stricter scrutiny for the latter.

Single vs. Joint Adoption

Philippine law distinguishes between single and joint adoptions:

Single Adoption: Permitted for unmarried individuals who meet the qualifications. This includes widows, widowers, or never-married persons. However, single adopters may face greater scrutiny during home studies, as the law and DSWD guidelines prefer stable, two-parent households for the child's best interest.
Joint Adoption: Mandatory for married couples under RA 8552, Section 7. Husband and wife must file the petition together, reflecting the cultural and legal emphasis on marital stability. Exceptions exist, but they do not extend to unmarried partners.

RA 8043 for inter-country adoption similarly requires married couples to adopt jointly, with limited provisions for singles (e.g., if adopting a relative).

The Impact of Existing Marriage on Adoption Eligibility

The core issue in the query is when one partner in an unmarried relationship remains legally married to a third party. Philippine law does not recognize divorce for Filipino citizens (except under the Code of Muslim Personal Laws for Muslims or recognition of foreign divorces involving foreigners). Instead, options include annulment (declaring the marriage void ab initio), nullity declarations, or legal separation (which separates bed and board but does not dissolve the marriage bond).

If One Partner Is Legally Married

A person who is still married cannot adopt jointly with an unmarried partner because:

Joint adoption is reserved exclusively for legally married spouses. Unmarried partners, including those in long-term cohabitation (common-law relationships), are not recognized as a marital unit under the Family Code of the Philippines (Executive Order No. 209). Cohabitation does not confer spousal rights for adoption purposes.
The married individual must adopt jointly with their legal spouse, unless an exception applies under RA 8552, Section 7:
1. One spouse adopts the legitimate child of the other (with consent).
2. One spouse adopts their own illegitimate child (with consent).
3. The spouses are legally separated.

In the third exception, legal separation (under Family Code Articles 55-67) allows one spouse to adopt independently without the other's participation. However, this does not permit joint adoption with a new partner, as the legal separation does not terminate the marriage—remarriage or joint adoption with another would constitute bigamy or violate public policy.

Thus, if the married partner is only factually separated (de facto, without court decree), they cannot adopt alone; joint adoption with the legal spouse is required. De facto separation does not alter marital status, and attempting to adopt with an unmarried partner could lead to petition denial or legal challenges.

If Both Partners Are Unmarried

For context, if neither partner is married, they still cannot adopt jointly unless legally wed. Single adoption by one partner is possible, but the other would have no legal parental rights unless a subsequent step-parent adoption occurs after marriage. However, the query specifies one partner being "still married," so this scenario shifts the dynamics.

Specific Scenarios and Implications

Scenario 1: Married Partner Seeks to Adopt with Unmarried Partner

Legal Barrier: Impossible. The married partner cannot petition jointly with anyone but their spouse. If they attempt to list the unmarried partner as a co-petitioner, the DSWD or court would reject it, citing lack of marital status. This could raise issues of adultery or concubinage under the Revised Penal Code (Articles 333-334), potentially disqualifying the adopter for moral turpitude.
Alternative: The married partner could pursue annulment or nullity. Once single, they could marry the partner and adopt jointly. Annulment processes, however, are lengthy and costly, often taking years.

Scenario 2: Legally Separated Partner Seeks to Adopt with Unmarried Partner

Partial Possibility: The legally separated individual can adopt alone. However, joint adoption with the unmarried partner remains prohibited. The unmarried partner could provide support informally, but without legal recognition.
Child's Best Interest: During home studies, DSWD assesses household stability. A cohabiting relationship might be viewed positively for emotional support but could raise concerns about long-term commitment without marriage.

Scenario 3: Unmarried Partner (Single) Seeks to Adopt Alone

Feasible: The truly single partner can adopt independently, provided they meet qualifications. The married partner could live in the household, but this might complicate the home study if the arrangement appears unstable or legally questionable.
Subsequent Steps: If the couple later marries (after the married partner's annulment), the new spouse could adopt the child as a step-parent under RA 8552 exceptions.

Inter-Country Adoption Considerations

Under RA 8043, joint adoption is strictly for married couples with at least three years of marriage (unless adopting a relative). Singles may adopt only if they are at least 27 years old and meet other criteria, but priority goes to couples. An existing marriage complicates matters similarly, as ICAB requires proof of marital status and stability.

Special Cases

LGBTQ+ Partners: Same-sex marriage is not recognized, so same-sex unmarried partners face the same barriers, compounded by potential biases in assessments, though the law is gender-neutral in qualifications.
Adopting Relatives: Familial adoptions (e.g., adopting a niece/nephew) may waive some requirements, but marital status rules still apply.
Foster Care as Alternative: Under RA 10165, unmarried partners (even with one married) might qualify for foster care, a temporary arrangement that could lead to adoption if eligibility is later met.
Administrative Adoption: RA 11642 streamlines processes through NACC but does not alter eligibility rules.

Challenges and Practical Considerations

DSWD Home Study: Evaluates the adopter's lifestyle, including relationships. Cohabitation with a married person could flag moral or stability issues.
Court Proceedings: Judges prioritize the child's welfare (RA 8552, Section 3). Petitions involving complex relationships may be denied.
Penalties for Misrepresentation: Falsifying marital status could result in petition revocation, fines, or imprisonment.
Cultural Context: Philippine society values traditional families, influencing agency decisions.
Reforms and Trends: Recent laws like RA 11642 aim for efficiency, but no changes allow joint adoption by unmarried partners.

Conclusion

Under Philippine law, unmarried partners cannot jointly adopt a child when one remains legally married, as joint adoption is exclusive to married couples. The married partner must resolve their status through annulment or legal separation to adopt alone, but even then, joint adoption with the partner requires marriage. Singles can adopt independently, offering a workaround, though with added scrutiny. Prospective adopters should consult DSWD or legal experts for personalized guidance, as the paramount consideration is always the child's best interest. Alternatives like foster care provide interim options, underscoring the law's protective stance amid evolving family dynamics.