IN THE MATTER OF THE ADOPTION OF ELIZABETH MIRA, GILBERT R. BREHM and ESTER MIRA BREHM, petitioners-appellees, vs. REPUBLIC OF THE PHILIPPINES, oppositor-appellant. ; G.R. No. L-18566 - September 30, 1963

TOPIC: Art. 5: Acts executed against the provisions of mandatory or prohibitory laws shall be void, except when the law itself authorizes their validity.

MANDATORY LAW SHALL PREVAIL OVER DIRECTORY LAWS.

RATIONALE: 

Provisions that contain words of positive prohibition and is couched in the negative terms importing that the act required shall not be done otherwise than designated are MANDATORY.

- e.g. Art. 335 clearly states that "The following cannot adopt: ... (4). Non-resident aliens"

DIRECTORY provisions can only be given operation if the same does not conflict with the mandatory provisions. 

- e.g.  Art. 338, Provides "the following may be adopted: (3) a step-child, by the step-father or step-mother"

GIST:

Brehm, a US navy, non-resident, temporarily residing in the Philippines for his assignment, married Mira, a Filipina citizen, and wanted to adopt her child. However, under Art. 335 of the Civil Code, non-resident aliens CANNOT adopt. He pleaded Art. 338 saying a stepchild "may" be adopted by the stepfather. But since Art. 338 is only directory and Art. 335 is mandatory, he wasn't currently legally permitted to adopt Elizabeth.

FACTS:

1. Gilbert R. Brehm is an American citizen, serving the U.S. Navy with temporary assignment at Subic Bay. On October 9, 1958, he married Ester Mira, a Filipino citizen, who had a daughter Elizabeth, by another man, also of the American Navy, who left the country in 1952, and never heard from since then. After the marriage, the couple established residence at Intramuros, Manila, and the minor Elizabeth had always been under their care and support of Brehm. 

2. January 28, 1959: the spouses filed a Joint Petition with the Juvenile and Domestic Relations Court for the adoption of the minor Elizabeth, claiming that they have mutually given their consent to the adoption, not only to promote her best interest and well-being, but also to give her a legitimate status. They prayed that after the proper proceedings, judgment be entered, freeing the child Elizabeth Mira from all legal obligations of obedience and maintenance with respect to her natural father, and be, for all legal intents and purposes, the child of the petitioners, with all the rights pertinent thereto.

3. However, Brehm's adoption of Elizabeth was opposed since it appears that he testified that he only has a temporary residence in the Philippines and for the sole purpose of his US Navy duty, thus, disqualifying him from making an adoption. (Art. 335, The following cannot adopt: 4.] Non-resident aliens] 

4. Brehm opposed by virtue of Art. 338, which stated that (3) A step-child, by the step-father or step-mother. There being an existing relationship between Brehm and Elizabeth since she had also been under his custody since Brehm and Ester's marriage. Brehm also contends that he intends to permanently reside in the Philippines after his tour of duty with the US Naval Forces.

5. The Juvenile & Domestic Relations Court ruled that Brehm's acts of coming to the Philippines coupled with his declared intention of permanently residing herein have cured the legal defect on the point of residence. Elizabeth was also freed for all obligations with respect to her natural father and for all legal intents and purposes, Elizabeth Mira's surname will be changed to Elizabeth Mira Brehm.

6. The Solicitor General claimed that adjudging Elizabeth Mira the adopted child of Gilbert Brehm to be an error.

ISSUE:

W/N Gilbert Brehm, a non-resident alien of the Philippines, can adopt Elizabeth Mira.

RULING:

NO.  Although the fourth recognizes the pure intention of herein petitioner, adoption cannot be granted by the virtue of their step-father/step-daughter relationship. Art. 338 should be construed in connection with Art. 335 which clearly states that (4) non-resident aliens are disqualified to adopt.

It is, therefore, mandatory because it contains words of positive prohibition and is couched in the negative terms importing that the act required shall not be done otherwise than designated. On the other hand, Art. 338, Provides "the following may be adopted: (3) a step-child, by the step-father or step-mother, which is merely directory, and which can only be given operation if the same does not conflict with the mandatory provisions of Art. 335. It is article 335 that confers jurisdiction to the court over the case, and before Article; 338 may or can be availed of, such jurisdiction must first be established. Thus, Brehm cannot adopt Elizabeth; his petition to adopt is denied.

REFERENCE:

Art. 335. The following cannot adopt:

(1) Those who have legitimate, legitimated, acknowledged natural children, or natural children by legal fiction;

(2) The guardian, with respect to the ward, before the final approval of his accounts;

(3) A married person, without the consent of the other spouse;

(4) Non-resident aliens;

(5) Resident aliens with whose government the Republic of the Philippines has broken diplomatic relations;

(6) Any person who has been convicted of a crime involving moral turpitude, when the penalty imposed was six months' imprisonment or more. (174a)