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PERSONS AND FAMILY RELATIONS LAW920

CIVIL CODEOF THE PHILIPPINES

TITLE X. — FUNERALS

Article 305. The duty and the right to make ar-rangements for the funeral of a relative shall be in

accordance with the order established for support,

under Article 294. In case of descendants of the

same degree, or of brothers and sisters, the oldest

shall be preferred. In case of ascendants, the pater-

nal shall have a better right.

ARRANGEMENTS. Those who are duty-bound to make

arrangements shall be in accordance with the order established forsupport. This order is now governed by Article 199 of the Family

Code which repealed Article 294 of the Civil Code and which provides

that such duty shall devolve first on the spouse; in his or her absence

or incapacity, the descendants in the nearest degree; in the absence

or incapacity of the latter, the ascendants in the nearest degree; and

finally, in the absence of all of the said persons, the brothers and

sisters. Article 305 also provides that in case of descendants of the

same degree, or of brothers and sisters, the oldest shall be preferred.

In case of ascendants, the paternal shall have a better right.

Article 306. Every funeral shall be in keeping

with the social position of the deceased.

Article 307. The funeral shall be in accordance

with the expressed wishes of the deceased. In the

absence of such expression, his religious beliefs or

affiliation shall determine the funeral rites. In case

of doubt, the form of the funeral shall be decided

upon by the person obliged to make arrangementsfor the same, after consulting the other members of

the family.

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921

KINDS OF FUNERAL. The wishes of the deceased shall be

mainly followed because this is part of the respect that shouldbe accorded to the dead. In the absence of such expression, his or

her religious beliefs or affiliation shall determine the funeral rites

because religious beliefs cater to the spiritual and, more often than

not, the deceased’s concept of death is greatly influenced by his or

her religious background. In case of doubt, the form of the funeral

shall be decided upon by the person obliged to make arrangements

for the same, after consulting the other members of the family. The

reason for this is that the law presumes that these people are the

ones who know the deceased very well and they are in a position toknow the kind of respect which the deceased might have desired in

his or her funeral had he or she expressed his or her wish before he

or she died.

However, in all cases, the law mandates that every funeral

shall be in keeping with the social position of the deceased. The

kind of funeral is the last manifestation of the kind of life which the

deceased has attained and the law sees to it that those who will be

in charge of the funeral arrangements will accord the right type of

respect due to the deceased.

Article 308. No human remains shall be re-

tained, interred, disposed of or exhumed without

the consent of the persons mentioned in Articles

294 and 305.

Article 309. Any person who allows disrespect

to the dead, or wrongfully interferes with a funer-

al shall be liable to the family of the deceased fordamages, material and moral.

RESPECT FOR THE DEAD. Philippine culture and tradition

give reverence to the dead. Thus, any undertaking that would, in a

way, “disturb” the dead must be with the consent of those who will

be greatly affected. Also, damages can be sought against those who

allow disrespect to the dead, or wrongfully interfere with a funeral.

Article 310. The construction of a tombstone ormausoleum shall be deemed a part of the funeral

expenses, and shall be chargeable to the conjugal

partnership property, if the deceased is one of the

spouses.

Arts. 308-310 FUNERALS




LIABILITY OF CONJUGAL PARTNERSHIP. If the deceased

is married, the law clearly provides that the tombstone ormausoleum shall be deemed a part of the funeral expenses and shall

be chargeable to the conjugal partnership property.

Art. 310



923

TITLE XII. — CARE AND EDUCATION

OF CHILDREN

Article 356. Every child:

(1) Is entitled to parental care; (2) Shall receive at least elementary educa-

tion;

(3) Shall be given moral and civic training by

the parents or guardian;

(4) Has a right to live in an atmosphere con-

ducive to his physical, moral and intellectual devel-

opment.

Article 357. Every child shall:

(1) Obey and honor his parents or guardian;

(2) Respect his grandparents, old relatives,

and persons holding substitute parental authority;

(3) Exert his utmost for his education and

training;

(4) Cooperate with the family in all mattersthat make for the good of the same.

Article 358. Every parent and every person

holding substitute parental authority shall see to

it that the rights of the child are respected and his

duties complied with, and shall particularly, by

precept and example, imbue the child with high-

mindedness, love of country, veneration for the na-

tional heroes, fidelity to democracy as a way of life,and attachment to the ideal of permanent world

peace.

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Article 359. The government promotes the full

growth of the faculties of every child. For this pur-pose, the government will establish, whenever pos-

sible:

(1) Schools in every barrio, municipality and

city where optional religious instruction shall be

taught as part of the curriculum at the option of

the parent or guardian;

(2) Puericulture and similar centers;

(3) Councils for the Protection of Children;and

(4) Juvenile courts.

Article 360. The Council for the Protection of

Children shall look after the welfare of children in

the municipality. It shall, among other functions:

(1) Foster the education of every child in the

municipality;

(2) Encourage the cultivation of the duties of

parents;

(3) Protect and assist abandoned or mistreat-

ed children, and orphans;

(4) Take steps to prevent juvenile delinquen-

cy;

(5) Adopt measures for the health of children;

(6) Promote the opening and maintenance of

playgrounds;

(7) Coordinate the activities of organizations

devoted to the welfare of children, and secure their

cooperation.

Article 361. Juvenile courts will be estab-

lished, as far as practicable, in every chartered cityor large municipality.

Article 362. Whenever a child is found delin-

quent by any court, the father, mother, or guardian

may in a proper case be judicially admonished.

Arts. 359-362



925

Article 363. In all questions on the care, cus-

tody, education and property of children, the lat-ter’s welfare shall be paramount. No mother shall

be separated from her child under seven years of

age, unless the court finds compelling reasons for

such measure.

Arts. 363 CARE AND EDUCATION OF CHILDREN




TITLE XIII. — USE OF SURNAMES

SURNAME AND MIDDLE NAME. The legal importance of a

surname is highlighted by the fact that there are so many cases

decided by the Supreme Court concerning surnames.

A person’s name is the designation by which he is known

and called in the community in which he lives and is best known.

It is defined as the word or combination of words by which a

person is distinguished from other individuals and, also, as

the label or appellation which he bears for the convenience of

the world at large addressing him, or in speaking of or dealing

with him. It is both of personal as well as public interest that

every person must have a name. The name of an individual has

two parts: (1) the given or proper name and (2) the surname or

family name. The given or proper name is that which is given

to the individual at birth or at baptism, to distinguish him from

other individuals. The surname or family name is that which

identifies the family to which he belongs and is continued

from parent to child. The given name may be freely selected

by the parents for the child, but the surname to which the

child is entitled is fixed by law (In the matter of the adoption of

Stephanie Nathy Astorga Garcia, G.R. No. 148311, March 31,

2005, 454 SCRA 541).

A name is said to have the following characteristics: (1)

It is absolute, intended to protect the individual from beingconfused with others. (2) It is obligatory in certain respects, for

nobody can be without a name. (3) It is fixed, unchangeable,

or immutable, at least at the start, and maybe changed only

for good cause and by judicial proceedings. (4) It is outside the

commerce of man, and therefore inalienable and intransmissible

by act inter vivos or mortis causes. (5) It is imprescriptible (In

Re: Petition for Change of Name and/or Correction of Entry

in the Civil Registry of Julian Lin Carulasan Wang, G.R. No.

159966, March 30, 2005, 454 SCRA 155).

Middle names have a practical and legal significance in

that they serve to identify the maternal lineage or filiation of a

person as well as further distinguish him or her from others who

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may have the same given name and surname as he or she has.

A middle name cannot just be dropped without compelling or

justifiable reasons. It cannot be dropped merely because it is an

inconvenience to the person using it (In Re: Petition for Change

of Name and/or Correction of Entry in the Civil Registry of

Julian Lin Carulasan Wang, G.R. No. 159966, March 30, 2005,

454 SCRA 155).

Article 364. Legitimate and legitimated child-

ren shall principally use the surname of the father.

LEGITIMATE AND LEGITIMATED CHILDREN. Article 174

of the Family Code provides, among others, that legitimate children

shall have the right to bear the surname of the father and the

mother. Article 179 of the Family Code provides that legitimated

children shall enjoy the same rights as legitimate children and

therefore, they shall likewise have the right to bear the surname of

the father and the mother.

In Alfon v. Republic, G.R. No. L-51201, May 29,1980, 97 SCRA858, the Supreme Court ruled that the worked “principally” used

in Article 364 is not equivalent to “exclusively” so that there is no

legal obstacle if a legitimate or legitimated child should choose to

use the surname of the mother to which it is equally entitled. In

the said Alfon case, the Supreme Court also found as justified the

use of the use of the mother’s surname considering that the child

has been using it already in various records and hence changing the

child’s surname in her birth certificate from that of her father to her

mother was justified to avoid confusion.

Article 365. An adopted child shall bear the

surname of the adopter.

ADOPTED CHILD. Section 17, Article 5 of Republic Act 8552,

otherwise known as the Domestic Adoption Act of 1998, provides

that the adoptee shall be considered the legitimate son/daughter of

the adopter(s) for all intents and purposes and as such is entitled

to all the rights and obligations provided by law to legitimate sons/daughters without discrimination of any kind and, to this end, the

adoptee is entitled to love, guidance and support in keeping with the

means of the family. One of the rights of the adopted is, therefore,

the right to use the surname of the adopter.

Arts. 364-365 USE OF SURNAMES




Article 366. A natural child acknowledged by

both parents shall principally use the surname ofthe father. If recognized by only one of the parents,

a natural child shall employ the surname of the rec-

ognizing parent.

Article 367. Natural children by legal fiction

shall principally employ the surname of the father.

Article 368. Illegitimate children referred to in

Article 287 shall bear the surname of the mother.

ILLEGITIMATE CHILDREN. Under the new Family Code,

there are only two classes of children, namely, legitimate and

illegitimate. The five distinctions among various types of illegitimate

children under the Civil Code have been eliminated (Gapusan Chua

v. Court of Appeals, 183 SCRA 160). Article 176 of the Family Code

provides that

illegitimate children shall use the surname and shall be under

the parental authority of their mother, and shall be entitled

to support in conformity with this Code. However, illegitimatechildren may use the surname of their father if their filiation

has been expressly recognized by the father through the record

of birth appearing in the civil register, or when an admission in

a public document or private handwritten instrument is made

by the father. Provided, the father has the right to institute an

action before the regular courts to prove non-filiation during his

lifetime. The legitime of each illegitimate child shall consist of

one-half of the legitime of a legitimate child (as amended by

Republic Act No. 9255).

Article 369. Children conceived before the de-

cree annulling a voidable marriage shall principal-

ly use the surname of the father.

CONCEPTION INSIDE AN ANNULLABLE MARRIAGE.

Legitimate children are those conceived or born inside a valid mar-

riage. An annullable marriage is valid until annulled or terminated.

Hence, a child conceived inside a marriage prior to its annulment is

legitimate.

Article 370. A married woman may use:

(1) Her maiden first name and surname and

add her husband’s surname, or

Arts. 366-370



929

(2) Her maiden first name and her husband’s

surname, or (3) Her husband’s full name, but prefexing a

word indicating that she is his wife, such as “Mrs.”

MARRIED WOMAN. Article 370 is directory and permissive in

character because when a woman gets married, she does not change

her name but only her civil status. Moreover this is consistent

with the rule that surname indicates descent (Remo v. Honorable

Secretary of Foreign Affairs, G.R. No. 169202, March 5, 2010; Yasin

v. Honorable Judge Shari’a District Court, 311 Phil 696, 707). Amarried woman can maintain her name and surname or follow

any of the names in Article 370. Thus, a validly married woman

has actually four alternatives in the use of a name. Thus, Corazon

Cojuangco married to Benigno Aquino, Jr. may use either Corazon

Cojuangco, Corazon Cojuangco-Aquino, Corazon Aquino or Mrs.

Benigno Aquino, Jr.

In Remo v. Honorable Secretary of Foreign Affairs, G.R. No.

169202, March 5, 2010, the Supreme Court ruled that, for purposesof surnames used in the passport, a married woman who opted to

use the surname of her husband in her passport must continue to

use it in case of renewal. She cannot revert to using her maiden

surname because, pursuant to Republic Act No. 8239, the law

regulating the issuance of passport, a married woman who used the

surname of her husband in initially obtaining a passport can change

her surname to her maiden surname in subsequent renewals only

if the marriage were annulled or nullified or the woman obtained

a valid divorce abroad. The Supreme Court likewise stated that

Republic Act No. 8239 is a more specific law than the Civil Code on

surnames and therefore the former should prevail. It is submitted

that the decision of the Supreme Court in the Remo case should

have been the other way around. The woman should have been

allowed to use her maiden surname. This decision should not have

been decided from the perspective of mere statutory construction

but it should have been determined from a rights-based perspective

which is more fundamental. Article 370 of the Civil Code deals with

a fundamental right to the use of a surname by a woman. Republic

Act No. 8239 merely deals with a procedural rule that does not go

into the intrinsic significance of the importance of a surname. While

it may be true that a passport is the property of the State, this is not

enough reason to deprive its citizen of a fundamental right which

the State must also protect.

Art. 370 USE OF SURNAMES




Article 371. In case of annulment of marriage,

and the wife is the guilty party, she shall resumeher maiden name and surname. If she is the inno-

cent spouse, she may resume her maiden name and

surname. However, she may choose to continue em-

ploying her former husband’s surname, unless:

(1) The court decrees otherwise, or

(2) She or the former husband is married

again to another person.

ANNULMENT. In the event that the marriage is annulled,

there are certain rules to be followed in so far as the wife is concerned.

Thus, if Maria Clara-De la Cruz’s marriage to Juan De la Cruz is

annulled and if the said wife is the guilty party, she should resume

using Maria Clara. If she is the innocent spouse, she may use Maria

Clara or Maria Clara-De la Cruz depending upon her choice unless

the court decrees otherwise or unless she marries Sam America in

which case she will follow the rule under Article 370 in connection

with her being married to Sam America.

Article 372. When legal separation has been

granted, the wife shall continue using her name

and surname employed before the legal separation.

LEGAL SEPARATION. In legal separation the bond of marriage

is not severed. The husband and the wife are only separated from

“bed and board.” Hence, the wife may use her name and surname

employed before the legal separation (See Laperal v. Republic, 6SCRA 357).

Article 373. A widow may use the deceased

husband’s surname as though he were still living,

in accordance with Article 370.

WIDOW. A widow is a person whose husband is dead. She

can use the surname of the husband as if he were still living in

accordance with Article 370.

Article 374. In case of identity of names and

surnames, the younger person shall be obliged to

use such additional name or surname as will avoid

confusion.

Arts. 371-374



931

IDENTITY OF NAMES. So that confusion can be prevented,

the law provides that additional names or surnames shall be usedby younger people. Thus, if parents would want to name their son

after his godfather who is not related to them, the said son must use

an additional name or surname. Hence, if the name of the godfather

is Juan de la Cruz, the godson must use an additional name such as

Juan Pedro de la Cruz.

Article 375. In case of identity of names and

surnames between ascendants and descendants,

the word “Junior” can be used only by a son.Grandsons and other direct male descendants shall

either:

(1) Add a middle name or the mother’s sur-

name, or

(2) Add the Roman numerals II, III, and so

on.

IDENTITY OF NAMES BETWEEN ASCENDANTS AND

DESCENDANTS. According to the law, only the son can use the

word “junior” in case of identity of names between ascendants and

descendants. Hence, the son of Juan de la Cruz who has the same

name shall use Juan de la Cruz, Junior. Any other direct descendant

other than a son could either add a middle name or the mother’s

surname, or add the Roman numerals II, III, and so on. Hence, if

Juan de la Cruz, Junior, who is married to Julieta Santos, has a son

with the same name, such son shall use Juan Ricardo de la Cruz, or

Juan Santos-de la Cruz, or Juan de la Cruz III. If Juan de la Cruz

names his son after his father, Roberto de la Cruz, such son shall be

named Roberto de la Cruz II.

Article 376. No person can change his name or

surname without judicial authority.

REPUBLIC ACT NUMBERED 9048. Article 366 and also

Article 412 of the Civil Code have been amended by Republic Act

Number 9048, otherwise known as “An Act Authorizing the City

or Municipal Civil Registrar or the Consul General to Correct a

Clerical or Typographical Error in an Entry and/or Change of First

Name or Nickname in the Civil Register Without Need of Judicial

Order. Amending for this Purpose Articles 376 and 412 of the Civil

Code of the Philippines.” The Act is a consolidation of House Bill No.





9797 and Senate Bill No. 2159. It was finally passed by the House of

Representatives on February 7, 2001 and by the Senate on February8, 2001. It was signed by President Gloria Macapagal-Arroyo on

March 22, 2001. The complete text of the law is as follows:

Section 1. Authority to Correct Clerical or Typographical

Error and Change of First Name or Nickname. — No entry in

a civil register shall be changed or corrected without a judicial

order, except for clerical or typographical errors and change of

first name or nickname which can be corrected or changed by the

concerned city or municipal civil registrar or consul general in

accordance with the provisions of this Act and its implementingrules and regulations.

Sec. 2. Definitions of Terms. — As used in this Act, the

following terms shall mean:

(1) “City or municipal civil registrar” refers to the head

of the local civil registry office of the city or municipality, as the

case may be, who is appointed as such by the city or municipal

mayor in accordance with the provisions of existing laws.

(2) “Petitioner” refers to a natural person filing thepetition and who has direct and personal interest in the

correction of a clerical or typographical error in an entry or

change of first name or nickname in the civil register.

(3) “Clerical or typographical error” refers to a mistake

committed in the performance of clerical work in writing,

copying, transcribing or typing an entry in the civil register

that is harmless and innocuous, such as misspelled name or

misspelled place of birth or the like, which is visible to the

eyes or obvious to the understanding, and can be corrected or

changed only by reference to other existing record or records: Provided, however, That no correction must involve the change

of nationality, age, status or sex of the petitioner.

(4) “Civil register” refers to the various registry books

and related certificates and documents kept in the archives of

the local civil registry offices, Philippine Consulates and of the

Office of the Civil Registrar General.

(5) “Civil registrar general” refers to the administrator

of the National Statistics Office which is the agency mandated

to carry out and administer the provision of laws on civilregistration.

(6) “First name” refers to a name or a nickname given to

a person which may consist of one or more names in addition to

the middle and last names.

Art. 376



933

Sec. 3. Who may File the Petition and Where. — Any

person having direct and personal interest in the correction of

a clerical or typographical error in an entry and/or change of

first name or nickname in the civil register may file, in person,

a verified petition with the local civil registry office of the city

or municipality where the record being sought to be corrected or

changed is kept.

In case the petitioner has already migrated to anotherplace in the country and it would not be practical for such party,in terms of transportation expenses, time and effort to appearin person before the local civil registrar keeping the documents

to be corrected or changed, the petition may be filed, in person,with the local civil registrar of the place where the interestedparty is presently residing or domiciled. The two (2) local civilregistrars concerned will then communicate to facilitate theprocessing of the petition.

Citizens of the Philippines who are presently residing ordomiciled in foreign countries may file their petition, in person,with the nearest Philippine Consulates.

The petitions filed with the city or municipal civil registrar

or the consul general shall be processed in accordance with this Act and its implementing rules and regulations.

All petitions for the correction of clerical or typographicalerrors and/or change of first names or nicknames may be availedfor only once.

Sec. 4. Grounds for Change of First Name or Nickname. — The petition for change of first name or nickname may beallowed in any of the following cases:

(1) The petitioner finds the first name or nickname to beridiculous, tainted with dishonor or extremely difficult to writeor pronounce;

(2) The new first name or nickname has been habituallyand continuously used by the petitioner and he has been publiclyknown by the first names or nicknames in the community; or

(3) The change will avoid confusion.

Sec. 5. Form and Contents of the Petition. — The petition

shall be in the form of an affidavit, subscribed and sworn to

before any person authorized by law to administer oaths. Theaffidavit shall set forth facts necessary to establish the merits of

the petition and shall show affirmatively that the petitioner is

competent to testify to the matters stated. The petitioner shall

state the particular erroneous entry or entries which are sought

to be corrected and/or the change sought to be made.





The petition shall be supported with the following

documents:

(1) A certified true machine copy of the certificate or of

the page of the registry book containing the entry or entries

sought to be corrected or changed;

(2) At least two (2) public or private documents showing

the correct entry or entries upon which the correction or change

shall be based; and

(3) other documents which the petitioner or the city or

municipal civil registrar, or the consul general may consider

relevant and necessary for the approval of the petition.

In case of change of first name or nickname, the petition

shall likewise be supported with the documents mentioned in

the immediately preceding paragraph. In addition, the petition

shall be published at least once a week for two (2) consecutive

weeks in a newspaper of general circulation. Furthermore, the

petitioner shall submit a certification from the appropriate law

enforcement agencies that he has no pending case or no criminal

record.

The petition and its supporting papers shall be filed inthree (3) copies to be distributed as follows: first copy to the

concerned city or municipal civil registrar, or the consul general;

second copy to the Office of the Civil Registrar General; and the

third copy to the petitioner.

Sec. 6. Duties of the City of Municipal Civil Registrar or

the Consul General. — The city or municipal civil registrar

or the consul general to whom the petition is presented shall

examine the petition and its supporting documents. He shall

post the petition in a conspicuous place provided for the purposefor ten (10) consecutive days after he finds the petition and its

supporting documents sufficient in form and substance.

The city or municipal civil registrar or the consul general

shall act on the petition and shall render a decision not later

than five (5) working days after the completion of the posting

and/or publication requirement. He shall transmit a copy of

his decision together with the records of the proceedings to the

Office of the Civil Registrar General within five (5) working

days from the date of the decision.

Sec. 7. Duties and Powers of the Civil Registrar General. —

The civil registrar general shall, within ten (10) working days

from receipt of the decision granting a petition, exercise the

power to impugn such decision by way of an objection based on

the following grounds:

Art. 376



935

(1) The error is not clerical or typographical;

(2) The correction of an entry or entries in the civilregister is substantial or controversial as it affects the civil

status of a person; or

(3) The basis used in changing the first name or

nickname of a person does not fall under Section 4.

The civil registrar general shall immediately notify the

city or municipal civil registrar or the consul general of the

action taken on the decision. Upon receipt of the notice thereof,

the city or municipal civil registrar or the consul general shall

notify the petitioner of such action.

The petitioner may seek reconsideration with the civil

registrar general or file the appropriate petition with the proper

court.

If the civil registrar general fails to exercise his power

to impugn the decision of the city or municipal registrar or of

the consul general within the period prescribed herein, such

decision shall become final and executory.

Where the petition is denied by the city or municipal civilregistrar or the consul general, the petitioner may either appeal

the decision to the civil registrar general or file the appropriate

petition with the proper court.

Sec. 8. Payment of Fees. — The city or municipal civil

registrar or the consul general shall be authorized to collect

reasonable fees as a condition for accepting the petition. An

indigent petitioner shall be exempt from the payment of the

said fee.

Sec. 9. Penalty Clause. — A person who violates any of theprovisions of this Act shall, upon conviction, be penalized by

imprisonment of not less than six (6) years but not more than

twelve (12) years, or a fine of not less than Ten thousand pesos

(P10,000.00) but not more than One hundred thousand pesos

(P100,000.00), or both, at the discretion of the court.

In addition, if the offender is a government official or

employee, he shall suffer the penalties provided under civil

service laws, rules and regulations.

Sec. 10. Implementing Rules and Regulations. — The civilregistrar general shall, in consultation with the Department

of Justice, the Department of Foreign Affairs, the Office of the

Supreme Court Administrator, the University of the Philippines

Law Center and the Philippine Association of Civil Registrars,

issue the necessary rules and regulations for the effective





implementation of this Act not later than three (3) months from

the effectivity of this law.

Sec. 11. Retroactivity Clause. — This Act shall have

retroactive effect insofar as it does not prejudice or impair

vested or acquired rights in accordance with the Civil Code and

other laws.

Sec. 12. Separability Clause. — If any portion or provision

of this Act is declared void or unconstitutional, the remaining

portions or provisions thereof shall not be affected by such

declaration.

Sec. 13. Repealing Clause. — All laws, decrees, orders,rules and regulations, other issuances, or parts thereof

inconsistent with the provisions of this Act are hereby repealed

or modified accordingly.

Sec. 14. Effectivitiy Clause. — This Act shall take effect

fifteen (15) days after its complete publication in at least two (2)

national newspapers of general circulation.

CHANGE OF NAME AND SURNAME. A change of name is

a privilege and not a matter of right, so that before a person canbe authorized to change his or her name given either in his or her

certificate or civil registry, he or she must show proper or reasonable

cause or any compelling reason which may justify such change (Yu

Chi Han v. Republic, 15 SCRA 454; Ng Yao Siong v. Republic, 16

SCRA 483). A change of name or nickname can be effected through

the office of the local civil registrar reviewable by the office of the

Civil Registrar General and finally the courts.

A change of surname is however, a matter of judicial discretion

which must be exercised in the light of the reasons adduced and the

consequences that will likely follow (Yu v. Republic, 17 SCRA 253).

A person should not be allowed to use a surname which otherwise

he is not permitted to employ under the law (Manuel v. Republic, 1

SCRA 836).

REASONS FOR CHANGE OF NAME. The purpose of the law

in allowing a change of name or surname is to give a person an

opportunity to improve his or her personality and to promote his or

her best interest (Calderon v. Republic, 19 SCRA 721). But to justifya change of name, there must exist a proper and reasonable cause or

compelling reason. The reasons for change of name or nickname are

all provided in Section 4 of R.A. 9048. The following have been held

to constitute proper and reasonable causes or compelling reasons

Art. 376



937

for change of surname: (1) a ridiculous name, a name tainted with

dishonor, or a name extremely difficult to write or pronounce; (2) achange of civil status; and (3) a need to avoid confusion (Republic v.

Tañada, 42 SCRA 419). Also, it has been held that, in the absence

of prejudice to the State or any individual, a sincere desire to adopt

a Filipino name to erase signs of a former alien nationality which

unduly hamper social and business life, is a proper and reasonable

cause for a change of surname (Uy v. Republic, 15 SCRA 457).

In Silverio v. Republic, G.R. No. 174689 October 19, 2007,

537 SCRA 373, the Supreme Court ruled that , a male person who

had a surgical sexual reassignment where she became biologicallya woman cannot use that ground as reason to change his name

from “Rommel” to “Mely” as a person’s sex is immutable from birth.

However, in Republic v. Cagandahan, G.R. No. 166676, September

12, 2008, 565 SCRA 72, a change of name from “Jennifer” to “Jeff”

was allowed even without surgical sexual reassignment in a case

where the person was found out to have Congenital Adrenal

Hyperplasia (CAH) which was a rare biological situation where the

person had the sex organs of a male and a female and where the

person finally considered his sex as a male considering that he hadno menstruation and no breast as a woman and was wanting in

woman-hormones. The Supreme Court said:

Respondent here has simply let nature take its course

and has not taken unnatural steps to arrest or interfere with

what he was born with. And accordingly, he has already ordered

his life to that of a male. Respondent could have undergone

treatment and taken steps, like taking lifelong medication, to

force his body into the categorical mold of a female but he did

not. He chose not to do so. Nature has instead taken its due

course in respondent’s development to reveal more fully his

male characteristics.

In the absence of a law on the matter, the Court will not

dictate on respondent concerning a matter so innately private as

one’s sexuality and lifestyle preferences, much less on whether or

not to undergo medical treatment to reverse the male tendency

due to CAH. The Court will not consider respondent as having

erred in not choosing to undergo treatment in order to become

or remain as a female. Neither will the Court force respondentto undergo treatment and to take medication in order to fit the

mold of a female, as society commonly currently knows this

gender of the human species. Respondent is the one who has

to live with his intersex anatomy. To him belongs the human

right to the pursuit of happiness and of health. Thus, to him





should belong the primordial choice of what courses of action to

take along the path of his sexual development and maturation.

In the absence of evidence that respondent is an “incompetent”

in the absence of evidence to show that classifying respondent

as a male will harm other members of society who are equally

entitled to protection under the law, the Court affirms as

valid and justified the respondent’s position and his personal

judgment of being a male.

In a case where a divorced woman subsequently remarried

and desired to have her child’s surname changed to the surname of

her second husband who had always treated the child with love andaffection, the Supreme Court rejected the plea for change of name

and observed:

Anent the first issue, the government sustains a negative

stand for the reason that our laws do not authorize a legitimate

child to use the surname of a person who is not his father, for,

as a matter of fact, Article 364 of the Civil Code specifically

provides that legitimate children shall principally use the

surname of their father. Mention is also made of Article 369

of the same Code which provides that in case of annulment ofvoidable marriage the children conceived before the annulment

shall principally use the surname of the father, and considering

by analogy the effect of a decree of divorce, it is concluded that

the children who are conceived before such a decree should also

be understood as carrying the surname of the real father, which,

in this case, is Velarde.

We find tenable this observation of government’s counsel.

Indeed, if a child born out of a lawful wedlock be allowed to

bear the surname of the second husband of the mother, shouldthe first husband die or be separated by a decree of divorce,

there may result a confusion as to his real paternity. In the long

run, the change may redound to the prejudice of the child in the

community.

While the purpose which may have animated petitioner

is plausible and may run along the feeling of cordiality and

spiritual relationship that pervades among the members of the

Moore family, our hand is deferred by a legal barrier which we

cannot at present overlook or brush aside.

Another factor to be reckoned with is the fact that the child

concerned is still a minor who for the present cannot fathom

what would be his feeling when he comes to a mature age. Any

way, if the time comes, he may decide the matter for himself

and take such action as our law may permit. For the present

Art. 376



939

we deem the action taken by petitioner premature (Moore v.

Republic, 8 SCRA 282).

However, in a subsequent case, the Supreme Court allowed

the change of surname of an illegitimate child as it would appear

that it was for the best interest of the child. The Supreme Court, in

Calderon v. Republic, 19 SCRA 721, observed and ruled, to wit:

The lower court found that petitioner Gertrudes Josefina

was born on March 17, 1956, an illegitimate child of Manuel

del Pradeo and Corazon Adolfo as a result of their bigamous

marriage which was annulled on July 18, 1957, after a judgmentof conviction of said Manuel del Prado on the complaint for

bigamy on December 5, 1956; that subsequently, on December

26, 1957, Corazon Adolfo, mother of the petitioner, got married

to Romeo C. Calderon; that the petitioner is living with her

mother and her foster father; and that Romeo C. Calderon

declared in open court his consent to the petitioner’s adopting

his surname, especially so because he is the one supporting her.

The lower court says: “In the opinion of the Court the reasons

adduced by the petitioner are valid and will redound to the best

interests of said minor who after all is not at fault to have come

to this world as an illegitimate child.”

We agree with the court a quo. A petition to change the

name of an infant, as in this case, should be granted only where

to do so is clearly for the best interest of the child. When the

mother of the petitioner filed the instant petition, she had in

mind what she believed was for the best interest of her child,

considering that her husband Romeo C. Calderon is the one

supporting the child and that he is agreeable to the child’s

using his surname. The mother had considered the generousattitude of her husband as an opportunity for her to promote

the personality and enhance the dignity, of her daughter by

eliminating what constitutes a stigma of illegitimacy which

her child would continue to bear if her surname is that of her

legitimate father.

The Solicitor General, in his brief, avers that the evident

purpose of petitioner in seeking a change of her surname is to

conceal her status as an illegitimate child and that any attempt

to conceal illegitimacy cannot be motivated by good faith andan honest purpose. The Solicitor General further alleges that

to authorize the change of the name of the petitioner would be

to sanction a misrepresentation because the petitioner wants

to appear as if she is the daughter of Romeo C. Calderon. We

cannot agree with the view of the Solicitor General. The Solicitor





General seems to support the idea that since the petitioner has

the misfortune of being born illegitimate she must bear that

stigma of illegitimacy as long as she lives. That idea should not

be countenanced. Justice dictates that every person be allowed

to avail of any opportunity to improve his social standing as

long as in so doing he does not cause prejudice or injury to theinterests of the State or of other people.

The Solicitor General also contends that the status of thepetitioner is that of a natural child by legal fiction and under Article 367 of the Civil Code, she shall principally enjoy thesurname of the father. We agree with the lower court when it

said that “While it is true that the Code provides that a naturalchild by legal fiction as the petitioner herein shall principallyenjoy the surname of the father, yet, this does not mean thatsuch child is prohibited by law from taking another surname

with the latter’s consent and for justifiable reasons.” If under

the law a legitimate child may secure a change of name

through judicial proceedings, upon a showing of a “proper and

reasonable cause,” we do not see any reason why a natural child

cannot do the same. The purpose of the law in allowing a change

of name, as contemplated by the provisions of Rule 103 of the

Rules of Court, is to give a person an opportunity to improve hispersonality and to promote his best interests. We are satisfied

that the facts and circumstances as borne out by the record

amply justify the change of surname of the petitioner as ordered

by the lower court. We have held that the matter whether to

grant or deny a petition for a change of name is left to the sounddiscretion of the court, and in the present case we believe thatthe court a quo had exercised its discretion in a judicious waywhen it granted the petition.

EFFECT OF CHANGE OF NAME. A change of name does notalter family relations, rights or duties, legal capacity, civil status or

citizenship (Calderon v. Republic, 19 SCRA 721).

What is altered is only the name, which is that word or

combination of words by which a person is distinguished

from others and which he bears as a label or appellation for

the convenience of the world at large in addressing him, or

in speaking of or dealing with him (In re Petition for Change

of Name of Joselito Yu, Juan S. Barrera v. Republic of the

Philippines, L-20874, May 25, 1966).

NATURE OF PROCEEDINGS. The procedure for change of

name is provided for in Section 3 up to 7 of R.A. No. 9048. However,

a petition for change of surname is a judicial proceeding in rem (Tan

Art. 376



941

v. Republic, 4 SCRA 1128). The judicial proceeding for change of

surname is governed by Rule 103 of the Rules of Court, to wit:

Section 1. Venue. — A person desiring to change his name

shall present the petition to the Court of First Instance [now

Regional Trial Court] of the province in which he resides, or,

in the City of Manila, to the Juvenile and Domestic RelationsCourt (now Regional Trial Court).

Section 2. Contents of petition. — A petition for change

of name shall be signed and verified by the person desiring hisname changed, or some other person on his behalf, and shall set

forth:

(a) That the petitioner has been a bona fide resident

of the province where the petition is filed for at least three (3)

years prior to the date of such filing;

(b) The cause for which the change of the petitioner’s

name is sought;

(c) The name asked for.

Section 3. Order for hearing. — If the petition filed is

sufficient in form and substance, the court, by an order reciting

the purpose of the petition, shall fix a date and place for the

hearing thereof, and shall direct that a copy of the order bepublished before the hearing at least once a week for three

(3) successive weeks in some newspaper of general circulation

published in the province, as the court shall deem best. Thedate set for the hearing shall not be within (30) days prior to an

election nor within four (4) months after the last publication of

the notice.

Section 4. Hearing. — Any interested person may appearat the hearing and oppose the petition. The Solicitor General or

the proper provincial or city fiscal shall appear on behalf of theGovernment of the Philippines.

Section 5. Judgment. — Upon satisfactory proof in opencourt on the date fixed in the order that such order has been

published as directed and that the allegations of the petition are

true, the court shall, if proper and reasonable cause appears for

changing the name of the petitioner, adjudge that such name be

changed in accordance with the prayer of the petition.

Section 6. Service of judgment. — Judgments or orders

rendered in connection with this rule shall be furnished the civil

registrar of the municipality or city where the court issuing the

same is situated, who shall forthwith enter the same in the civil

register.





Although Rule 103 refers to change of “name,’’ it should refer

to surname in view of the fact that change of name is now governedby Republic Act No. 9048.

It has been importantly held that publication of the petition for

change of name is essential for the court to acquire jurisdiction (Ng

Yao v. Republic, 16 SCRA 483). Publication is notice to the whole

world that the proceeding has for its object “to bar indifferently all

who might be minded to make an objection of any sort against the

right sought to be established” (Rendora v. Republic, 35 SCRA 483).

Article 377. Usurpation of a name and surnamemay be the subject of an action for damages and

other relief.

Article 378. The unauthorized or unlawful use

of another person’s surname gives a right of action

to the latter.

USURPATION OF NAME. In Tolentino v. Court of Appeals,

162 SCRA 66, where the current wife filed an action to prevent

the former wife of her husband to use the surname of the said

husband, the Supreme Court ruled that there was no usurpation

and pertinently stated:

There is no usurpation of the petitioner’s name and

surname in this case so that the mere use of the surname

Tolentino by the private respondent cannot be said to have

injured the petitioner’s rights. “The usurpation of name implies

some injury to the interests of the owner of the name. It consists

in the possibility of confusion of identity x x x between theowner and the usurper. It exists when a person designates

himself by another name x x x. The following are the elements of

usurpation of a name: 1) there is an actual use of another’s name

by the defendant; 2) the use is unauthorized; and 3) the use of

another’s name is to designate personality or identify a person

(Tolentino, supra, p. 685). None of these elements exists in the

case at bar and neither is there a claim by the petitioner that

the private respondent impersonated her. In fact, it is of public

knowledge that Constancia Tolentino is the legal wife of Arturo

Tolentino so that all invitations for Senator and Mrs. ArturoTolentino are sent to Constancia. Consuelo never represented

herself after the divorce as Mrs. Arturo Tolentino but simply

Mrs. Consuelo David-Tolentino. The private respondent has

legitimate children who have every right to use the surname

Tolentino. She could not possibly be compelled to use the prefix

Arts. 377-378



943

“Miss” or use the name Mrs. David, different from the surnames

of her children. The records do not show that she has legally

remarried.

In Silva, et al. v. Peralta (110 Phil. 57), cited by the

petitioner, it was not the mere use of the surname that was

enjoined but the defendant’s representation that she was the

wife of Saturnino Silva. There was, therefore, a usurpation of

the wife’s status which is absent in the case at bar.

We rule that the use of the surname Tolentino does not

impinge on the rights of the petitioner.

Considering the circumstances of this petition, the ageof the respondent who may be seriously prejudiced at this

stage of her life, having to resort to further legal procedures in

reconstituting documents and altering legal transactions where

she used the surname Tolentino, and the effects on the private

respondent, who while still not remarried, will have to use a

surname different from the surnames of her own children, we

find it just and equitable to leave things as they are, there being

no actual legal injury to the petitioner save a deep hurt to her

feelings which is not a basis for injunctive relief.

Article 379. The employment of pen names or

stage names is permitted, provided it is done in

good faith and there is no injury to third persons.

Pen names and stage names cannot be usurped.

Article 380. Except as provided in the preced-

ing article, no person shall use different names and

surnames.

PEN NAMES OR STAGE NAMES. A person may use a name

other than his name. This name is called pen name or stage name.

Journalists and artists usually use pen names and stage names.

However, for them to be able to do so, it must be done in good faith

and without injury to third persons. Indeed, people using pen names

and stage names can have a vested right on such names because the

law also provides that it cannot be usurped.





TITLE XIV. — ABSENCE

Chapter 1

PROVISIONAL MEASURES IN CASE

OF ABSENCE

Article 381. When a person disappears from

his domicile, his whereabouts being unknown, and

without leaving an agent to administer his proper-

ty, the judge, at the instance of an interested party,

a relative, or a friend, may appoint a person to rep-

resent him in all that may be necessary.

This same rule shall be observed when under

similar circumstances the power conferred by theabsentee has expired. (181a)

Article 382. The appointment referred to in

the preceding article having been made, the judge

shall take the necessary measures to safeguard the

rights and interests of the absentee and shall spec-

ify the powers, obligations and remuneration of his

representative, regulating them, according to the

circumstances, by the rules concerning guardians.

(182)

Article 383. In the appointment of a represen-

tative, the spouse present shall be preferred when

there is no legal separation.

If the absentee left no spouse, or if the spouse

present is a minor, any competent person may be

appointed by the court. (183a)

COURT APPOINTMENT. It is necessary that the appointment

of a representative of an absentee be made by way of a court order

( Ablang v. Fernandez, 25 Phil. 33), and it must be noted that a

944



945

spouse must likewise file an application for appointment with the

courts with respect to the properties of his or her very own absentspouse. If there is no legal separation, the spouse present shall be

preferred.

The phrase “or if the spouse present is a minor” in the second

paragraph of Article 383 has already been repealed by Republic Act

No. 6809 which lowered the age of emancipation to 18 years of age.

Thus, a person who marries must necessarily be at least 18 years of

age for the marriage to be valid.

Arts. 381-383 ABSENCE

Provisional Measures in Case of Absence




Chapter 2

DECLARATION OF ABSENCE

Article 384. Two years having elapsed without

any news about the absentee or since the receipt ofthe last news, and five years in case the absentee

has left a person in charge of the administration of

his property, his absence may be declared. (184)

Article 385. The following may ask for the dec-

laration of absence:

(1) The spouse present;

(2) The heirs instituted in a will, who maypresent an authentic copy of the same;

(3) The relatives who may succeed by the law

of intestacy;

(4) Those who may have over the property of

the absentee some right subordinated to the condi-

tion of his death. (185)

Article 386. The judicial declaration of absence

shall not take effect until six months after its publi-cation in a newspaper of general circulation. (186a)

JUDICIAL DECLARATION OF ABSENCE. A judicial decla-

ration of absence is necessary for interested persons to be able to

protect their rights, interests and benefits in connection with the

person who has disappeared. It is also necessary to protect the inter-

est of the absentee.

SPOUSE. For a spouse, a judicial declaration of absence can be

a sufficient cause for an involuntary judicial separation of property

between spouses under Article 135 of the Family Code and, therefore,

a basis for the termination of the absolute community property or

946



947

the conjugal partnership of gains pursuant to Articles 99, 126, 134

to 138 of the Family Code; a ground for the transfer of all classesof exclusive properties of a spouse to his or her other spouse under

Article 142 of the Family Code; and a basis that can be used for the

termination of parental authority under Article 229 of the Family

Code.

TESTAMENTARY HEIRS. If a person executes a will and he

institutes another person as the one who will succeed him or her in

his or her property, such person can seek for the judicial declaration

of absence of the testator.

INTESTATE HEIRS. The intestate heirs are those specified in

Section 2, Subsections 1 to 6, Chapter 3 of Title IV, Book III of the

Civil Code relative to the rules of successions. Hence, as a general

rule and in proper cases provided in the said Title IV of the Civil

Code, the legitimate and illegitimate relatives of the deceased, the

spouse, and the collateral relatives are the intestate heirs.

INTERESTED PARTY. The law also provides that those who

may have over the property of the absentee some right subordinated

to the condition of the absentee’s death may seek the judicialdeclaration of absence. For example, during the time when the

person was still present he or she executed a valid contract with

another person providing that, if he dies in 1993, the said person

shall have the right to repurchase his former house which was sold

to the absentee when the latter was still present, such interested

person can seek the judicial declaration of absence of the absentee as

his right of repurchase is subordinated to the death of the absentee.

In this regard, Article 42 of the Civil Code also provides that the

effect of death upon the rights and obligations of the deceased personis determined, among others, by contract.

EFFECTIVITY OF JUDICIAL DECLARATION. The law

provides that the judicial declaration of absence shall not take

effect until six months after its publication in a newspaper of

general circulation. However, the absence of the absentee shall be

counted not from the effectivity of the judicial decree but from the

date on which the last news of the absentee was received (Jones v.

Hortiguela, 64 Phil. 179).


Declaration of Absence




Chapter 3

ADMINISTRATION OF THE PROPERTY

OF THE ABSENTEE

Article 387. An administrator of the absentee’s

property shall be appointed in accordance with Ar-

ticle 383. (187a)

Article 388. The wife who is appointed as an

administratrix of the husband’s property cannot

alienate or encumber the husband’s property, or

that of the conjugal partnership, without judicial

authority. (188a)

PROHIBITION ON ALIENATION. While Article 388 refersonly to the wife, a husband likewise is prohibited from alienating

the properties of the wife without her consent. Under the Family

Code, the rights of the spouses as to their respective exclusive

properties are respected. Hence, any of the spouses cannot alienate

the properties of the other spouse without the consent of the latter.

In fact, Article 111 of the Family Code provides that a spouse may

mortgage, encumber, alienate or otherwise dispose of his or her

exclusive property, without the consent of the other spouse, and

appear alone in court to litigate with regard to the same. Article112 of the Family Code provides that the alienation of any exclusive

property of a spouse administered by the other automatically

terminates the administration over such property and the proceeds

of the alienation shall be turned over to the owner-spouse.

Article 389. The administration shall cease in

any of the following cases:

(1) When the absentee appears personally or

by means of an agent;

(2) When the death of the absentee is proved

and his testate or intestate heirs appear;

948



949

(3) When a third person appears, showing by

a proper document that he has acquired the absen-tee’s property by purchase or other title.

In these cases, the administrator shall cease

in the performance of his office, and the property

shall be at the disposal of those who may have a

right thereto. (190)

APPEARANCE OF ABSENTEE. The purpose of appointing

an administrator is to protect the properties of the owner during

his or her absence. If the owner appears, the very reason for theadministrator’s appointment ceases. The owner must be allowed

to take care of his or her own property. This is true also if a duly

appointed agent of the owner appears. By the contract of agency, a

person binds himself to render some service or to do something in

representation or on behalf of another, with the consent or authority

of the latter (Article 1868 of the Civil Code).

DEATH. Upon the death of a person, the executor mentioned

in his or her will shall usually be appointed as the administratorof his or her estate in accordance with the said decedent’s wishes

which must be pursuant to law. If he or she dies without a will,

intestate proceedings will be instituted where a new administrator

of his or her estate shall be appointed.

SUPERIOR INTEREST. The administrator must always act

within his or her mandate and authority. An administrator has no

right to administer property which does not belong to the owner.

Hence, if somebody presents any valid or authentic document

showing that the property being administered really belongs tosomebody else, the administration over such property shall and

must necessarily cease.

Art. 389 ABSENCE

Administration of the Property of the Absentee




Chapter 4

PRESUMPTION OF DEATH

Article 390. After an absence of seven years, it

being unknown whether or not the absentee still

lives, he shall be presumed dead for all purposes,

except for those of succession.

The absentee shall not be presumed dead for

the purpose of opening his succession till after an

absence of ten years. If he disappeared after the

age of seventy-five years, an absence of five years

shall be sufficient in order that his succession may

be opened. (n)

Article 391. The following shall be presumed

dead for all purposes, including the division of the

estate among the heirs:

(1) A person on board a vessel lost during a

sea voyage, or an aeroplane which is missing, who

has not been heard of for four years since the loss

of the vessel or aeroplane;

(2) A person in the armed forces who has tak-

en part in war, and has been missing for four years;

(3) A person who has been in danger of death

under other circumstances and his existence has

not been known for four years.

Article 392. If the absentee appears, or without

appearing his existence is proved, he shall recover

his property in the condition in which it may be

found, and the price of any property that may have

been alienated or the property acquired therewith;

but he cannot claim either fruits or rents. (194)

950



951

ABSENCE. The word “absence” in the rule that a presumption

of death is raised by the “absence” of a person from his domicilewhen unheard of for seven years, means that a person is not at the

place of his domicile and his actual residence is unknown, and it is

for this reason that his existence is doubtful, and that, after seven

years of such absence, his death is presumed. But removal alone is

not enough (Gorham v. Settegast, 98 SW 655). Indeed, disappearance

from his domicile and from knowledge of those with whom he could

naturally communicate is necessary (Maley v. Pennsylvania R. Co.,

101 A. 911, 258 Pa. 73).

PRESUMPTION OF DEATH. Article 390 creates the pre-

sumption of death. Except for purposes of remarriage under Article

41 of the Family Code, there is no need for filing a case to declare

that one is presumptively dead. As held in the case of In re Szatraw,

81 Phil. 461:

This presumption may arise and be invoked and made in a

case, either in an action or in a special proceeding, which is tried

or heard by, and submitted for decision to, a competent court.

Neither is there a prayer for the final determination of his rightor status or for the ascertainment of a particular fact (Hagan

v. Wislizenus, 42 Phil. 880), for the petition does not pray for

a declaration that the petitioner’s husband is dead, but merely

asks for a declaration that he be presumed dead because he had

been unheard from in seven years. If there is any pretense at

securing a declaration that the petitioner’s husband is dead,

such a pretension cannot be granted because it is unauthorized.

The petition is for a declaration that the petitioner’s husband

is presumptively dead. But this declaration, even if judicially

made, would not improve the petitioner’s situation, because

such a presumption is already established by law. A judicial

pronouncement to that effect, even if final and executory, would

still be a prima facie presumption only. It is still disputable.

It is for that reason that it cannot be the subject of a judicial

pronouncement or declaration, if it is the only question or

matter involved in a case, or upon which a competent court has

to pass. The latter must decide finally the controversy between

the parties, or determine finally the right or status of a party

or establish finally a particular fact, out of which certain rights

and obligations arise or may arise; and one such controversy is

decided by a final judgment, or such right or status determined,

or such particular fact established, by a final decree, then the

judgment on the subject of controversy, or the decree upon the

right or status of a party or upon the existence of a particular


Presumption of Death




fact becomes res judicata, subject to no collateral attack, except

in a few rare instances especially provided by law. It is therefore

clear that a judicial declaration that a person is presumptively

dead, because he had been unheard from in seven years, being a

presumption juris tantum only, subject to contrary proof, cannot

reach the stage of finality or become final. Proof of actual death

of a person presumed dead because he had been unheard from

in seven years, would have to be made in another proceeding

to have such particular fact determined. If a judicial decree

declaring a person presumptively dead because he had not been

heard from in seven years cannot become final and executory

even after the lapse of the reglementary period within which anappeal may be taken, for such presumption is still disputable

and remains subject to contrary proof, then a petition for such a

declaration is useless, unnecessary, superfluous and of no benefit

to the petitioner. The Court should not waste its valuable time

and be made to perform a superfluous and meaningless act.

PERIOD. For purposes of remarriage under Article 41 of the

Family Code, four consecutive years is enough for a person to be

judicially declared presumptively dead. For other purposes, there is

no need of a judicial declaration but the required period for one to

be presumed dead is seven years except for the opening succession.

In the latter case, an absence of 10 years is mandated by law except

when the person disappeared after the age of seventy-five years in

which case an absence of five years is enough. In these cases, the

person shall be presumed dead at the end of the seven-year period.

However, if the disappearance occurred under dangerous

circumstances as specified in Article 391, the period is shortened

to four years for all purposes including the division of the estateamong the heirs but excluding the situation under Article 41 of the

Family Code with respect to the present spouse wanting to remarry,

in which case a judicial declaration of presumptive death is needed

and the period is shortened to two years.

MISSING PERSON. Article 391 describes situations where a

person has been missing under dangerous circumstances. In this

regard, it has been held that Article 391 cannot apply to a person

who accidentally fell into the sea while on board a vessel andconsequently drowned. This is so because “the vessel was not lost

during a sea voyage” in such a particular case (Caltex v. Villanueva,

2 SCRA 897). In the same vein, therefore, if a person cannot be found

in a wreckage of an airplane which crashed, Article 391 will not

Arts. 390-392



953

apply because the airplane is not missing. In case of Article 391(2),

the person subject of inquiry must have “taken part in the war.”Relevantly, in case Article 391 is applicable in a particular situation,

it shall be presumed that the person died at the time when he was

last heard of and not at the end of the period.


Presumption of Death




Chapter 5

EFFECT OF ABSENCE UPON THE

CONTINGENT RIGHTS OF THE ABSENTEE

Article 393. Whoever claims a right pertaining

to a person whose existence is not recognized must

prove that he was living at the time his existence

was necessary in order to acquire said right. (195)

PROOF OF EXISTENCE. If a person is known to be dead and

there is a controversy as to the validity of a transaction or contract

allegedly entered into by him, the person claiming the validityof the transaction, contract or obligation must prove that, at the

time it was entered into, the person who entered the contract or

incurred the obligation was alive. Also, if some right exists in favor

of a deceased and such right is sought to be enforced, the individual

seeking to enforce such right must prove that the right vested in

favor of the deceased while the latter was still living. Hence, if A

validly made a donation of a house to X to be given on January 5,

1990 and likewise promised to give another donation of a specific car

also to X in the event that X would still be alive by January 2, 1991

and if, after December 25, 1990, X was nowhere to be found the

heirs of X can claim that the car already belongs to X after January

2, 1991 by proving that X was alive on January 2, 1991.

Article 394. Without prejudice to the provi-

sions of the preceding article, upon the opening of a

succession to which an absentee is called, his share

shall accrue to his co-heirs, unless he has heirs, as-signs, or a representative. They shall all, as the case

may be, make an inventory of the property. (196a)

954



955

ACCRETION. The disposition of the inheritance of an absentee

shall benefit either his or her co-heirs or his or her own heirs, assignsor representatives. For example, A and B are brothers. They are the

only heirs of their father. A has been judicially declared an absentee.

Thereafter, their father died without a last will and testament

leaving a net estate valued at P100,000. If A were not an absentee,

he will inherit P50,000 while B will likewise inherit P50,000.

Considering, however, that A is an absentee, his P50,000 shall

accrue to B who will therefore inherit the whole estate. However, if

A has children who are therefore his heirs, the said children shall

inherit the P50,000 which was supposed to go to A. The children willinherit by their right of representation.

Article 395. The provisions of the preceding ar-

ticle are understood to be without prejudice to the

action or petition for inheritance or other rights

which are vested in the absentee, his representa-

tives or successors in interest. This right shall not

be extinguished save by lapse of time fixed for pre-

scription. In the record that is made in the Registry

of the real estate which accrues to the co-heirs, the

circumstance of its being subject to the provisions

of this article shall be stated. (197)

CLAIM. In the event that the property supposed to be

inherited by the absentee accrues to the co-heirs, the title or record

of the said property in the proper registry of property shall have an

annotation stating that, within the prescriptive period provided by

law, the property can be subject to the claim of any person having

an interest in the said property especially the absentee, or his or her

representative or successors. If the said absentee reappears, he or

she has the right to file a petition to be able to get his or her rightful

inheritance from the said co-heirs. This right to claim the inheritance

by the absentee is also given to the absentee’s representatives or

successors. However, the absentee, his or her representatives or

successors must file the petition within the prescriptive period

provided by law.

Article 396. Those who may have entered upon

the inheritance shall appropriate the fruits re-

ceived in good faith so long as the absentee does

not appear, or while his representatives or succes-

sors do not bring the proper actions. (198)


Effect of Absence Upon the Contingent Rights of the Absentee




APPROPRIATION OF FRUITS. Anyone who obtains the

inheritance of the absentee in accordance with law can makeuse or appropriate the fruits of the inheritance as long as they

are in good faith. However, if the absentee appears or his or her

representatives or successors already filed a claim in court, those

who may have entered upon the inheritance cannot anymore make

such appropriation.

Art. 396



957

TITLE XVI. — CIVIL REGISTRY

Article 407. Acts, events and judicial decrees

concerning the civil status of persons shall be re-

corded in the civil register. (325a)

DUTIES OF THE LOCAL CIVIL REGISTRAR. The Local

Civil Registrar in each city or municipality shall: (a) file registerable

certificates and documents presented to them for entry; (b) compile

the same monthly and prepare and send any information required

of them by the Civil Registrar General; (c) issue certified transcripts

or copies of any certificate or document registered, upon payment

of the proper fees; (d) order the binding, properly classified, of all

certificates or documents registered during the year; (e) send to the

Civil Registrar-General during the first ten days of each month, a

copy of the entries made during the preceding month, for filing; (f)

index the same to facilitate search and identification in case any

information is required; and (g) administer oaths, free of charge, for

civil register purposes (Section 12 of the Civil Registry Law, Act No.

3753).

Article 408. The following shall be entered in

the civil register:

(1) Births; (2) marriages; (3) deaths; (4) legalseparations; (5) annulment of marriages; (6) judg-

ments declaring marriages void from the begin-

ning; (7) legitimations; (8) adoptions; (9) acknowl-

edgments of natural children; (10) naturalization;

(11) loss; or (12) recovery of citizenship; (13) civil

interdiction; (14) judicial determination of filia-

tion; (15) voluntary emancipation of a minor; and

(16) changes of name. (326a)

Article 409. In cases of legal separation, adop-

tion, naturalization and other judicial orders men-

tioned in the preceding article, it shall be the duty

957




of the clerk of court which issued the decree to as-

certain whether the same has been registered, andif this has not been done, to send a copy of said de-

cree to the civil registry of the city or municipality

where the court is functioning.

Article 410. The books making up the civil reg-

ister and all documents relating thereto shall be

considered public documents and shall be prima

facie evidence of the facts therein contained.

PUBLIC DOCUMENTS. The books making up the civil registerand all documents relating thereto shall be considered public

document (Article 409 of the Civil Code, Section 13 of Act No. 3753),

They shall be open to the public during office hours and shall be kept

in a suitable safe which shall be furnished to the local civil registrar

at the expense of the general fund of the municipality concerned.

The local civil registrar shall not under any circumstances permit

any document entrusted to his care to be removed from his office,

except by order of a court, in which case the proper receipt shall

be taken. The local civil registrar may issue certified copies of anydocument filed, upon payment of the proper fees required under the

law (Section 13 of the Civil Registry Law, Act No. 3753).

Unlike the filing of documents in the Registry of Deeds where

the law expressly provides that such filing is constructive notice to

all of the documents filed therein (Section 52 of P.D. 1529), the Civil

Register Law does not provide for constructive notice to all persons

of any document filed in the Office of the Local Civil Registrar or

Office of the Civil Registrar General (See Section 13 of Civil RegisterLaw Act No. 3753).

Thus, birth records, including a birth certificate, are strictly

confidential and the contents therein cannot be revealed except

when obtained by those interested therein, namely: 1) the person

himself, or any person authorized by him or her; 2) his or her spouse,

his or her parent or parents, his or her direct descendants, or the

guardian or institution legally in charge of him or her if he or she

is a minor; 3) the court or proper public official whenever absolutely

necessary in administrative, judicial or other official proceedings to

determine the identity of the child’s parents or other circumstances

surrounding his birth; and 4) in case of the person’s death, the

nearest of kin (Article 7 of Presidential Decree No. 603 as amended,

otherwise known as The Child and Youth Welfare Code).

Arts. 408-410



959

PRIMA FACIE EVIDENCE. By prima facie evidence is meant

such proofs which, if remaining unrebutted or uncontradicted, issufficient to maintain the fact such evidence seeks to substantiate.

It creates a presumption of fact. (Malicden v. Republic, 12 SCRA

313):

In case of conflict between a presumption of fact and a

presumption of law, the latter will prevail. Thus, even if the

record of birth states the name of a person as the father but

the child was born inside the valid marriage of the mother

with another man, the latter will be considered as the father

because of the presumption of law that a child born inside avalid marriage is legitimate as to the spouses of that marriage

(Concepcion v. Court of Appeals, 468 SCRA 438).

Also, in Babiera v. Catotal, G.R. No. 138493, June 15, 2000,

where a legitimate child filed a suit to cancel the birth certificate

of her housemaid’s child who claimed to be her sister and therefore

also the legitimate child of her parents and where it was proven that

the birth certificate of such housemaid’s child was forged to make it

appear that the said housemaid’s child was the child of the parentsof the legitimate child, the Supreme Court rejected the contention of

the housemaid’s child that the birth certificate must be considered

authentic considering that it enjoys the presumption of regularity in

its issuance. Pertinently, the Supreme Court said:

Lastly, petitioner argues that the evidence presented,

especially Hermogena’s testimony that petitioner was not her

real child, cannot overcome the presumption of regularity in the

issuance of the Birth Certificate. While it is true than an official document such as petitioner’s

Birth Certificate enjoys the presumption of regularity, the

specific facts attendant to the case at bar, as well as the totality

of evidence presented during trial, sufficiently negate such

presumption. First, there were already irregularities regarding

the Birth Certificate itself. It was not signed by the local civil

registrar. More important, the Court of Appeals observed that

the mother’s signature therein was different from her signatures

in other documents presented during trial.

Second, the circumstances surrounding the birth of

petitioner show that Hermogena is not the former’s real mother.

For one, there is no evidence of Hermogena’s pregnancy, such as

medical records and doctor’s prescriptions, other than the Birth

Certificate itself. In fact, no witness was presented to attest to

Arts. 408-410 CIVIL REGISTRY




the pregnancy of Hermogena during that time. Moreover, at the

time of her supposed birth, Hermogena was already 54 years

old. Even if it were possible for her to have given birth at such

late age, it was highly suspicious that she did so in her own

home, when her advanced age necessitated proper medical care

normally available only in a hospital.

The most significant piece of evidence, however, is the

deposition of Hermogena Babiera, which states that she did not

give birth to petitioner, and that the latter was neither hers nor

her husband Eugenio’s.

Article 411. Every civil registrar shall becivilly responsible for any unauthorized alteration

made in any civil register, to any person suffering

damage thereby. However, the civil registrar may

exempt himself from such liability if he proves

that he has taken every reasonable precaution to

prevent the unlawful alteration.

Article 412. No entry in a civil register shall be

changed or corrected, without judicial order.

REPUBLIC ACT NUMBERED 9048. Article 412 has been

amended by Republic Act 9048. The complete text of the said act is

set out in the discussion under Article 376. Nevertheless, Republic

Act Number 9048, among others, also deals with corrections in the

civil registry which involve merely typographical or clerical errors

just like the concept in Article 412.

ADMINISTRATIVE OR JUDICIAL PROCEEDING. Except for

clerical or typographical errors or change in the name or nicknameof a person, a change in the entries in the civil register must always

pass through a judicial proceeding. Typographical and/or clerical

errors can be corrected administratively through the office of the

local civil registrar by filing the necessary verified petition by any

person having direct and personal interest in the correction (Section

3 of R.A. No. 9043). However, the resolution of the Office of the Local

Civil Registrar can be reviewed by the Office of the Civil Registrar

General and finally by the courts (Section 7 of R.A. No. 9048). The

proceeding may either be summary or adversarial. A clerical errorhas been defined as one made “in copying or writing” (Yu v. Republic,

21 SCRA 1018).

“Clerical or typographical error” refers to a mistake

committed in the performance of clerical work in writing,

Arts. 411-412



961

copying, transcribing, or typing an entry in the civil registrar

that is harmless and innocuous, such as misspelled name or

misspelled place of birth or the like, which is visible to the

eyes or obvious to the understanding and can be corrected

or changed by reference to other existing record or records;

Provided, however, That no correction must involve the change

of nationality, age, status or sex of the petitioner (Section 2[3] of

R.A. No. 9043).

Examples of these errors are clearly misspelled name and oc-

cupation of parents ( Alisoso v. Lastimoso, 14 SCRA 210). Thus, the

change of “Sincio” to “Sencio,” which merely involves the substitu-tion of the first vowel “i” in the first name into the vowel “e,” merelyamounts to the righting of a clerical error (Yu v. Republic, 21 SCRA1018).

The proceeding must be judicial and should be adversarial ifthe changes involve substantial or controversial matters such asthose which involve a person’s civil status, nationality or citizenship,and filiation of the offsprings of parents (Chug Siu v. Local CivilRegistrar, 20 SCRA 877; Ty Kong Tin v. Republic, 50 O.G. 1077,

cited in David v. Republic, 15 SCRA 439). These substantial andcontroversial matters should be threshed out in an appropriatecourt proceeding instituted for the purpose wherein the State and allparties who may be affected by the entries are notified or representedto the end that the case may be decided with due process of law andon the basis of the facts proven (Chug Siu case, 20 SCRA 877; See

also Ansaldo v. Republic, 54 O.G. 5886).

With respect to a change which will, in effect, alter the statusof a person, for example from legitimate to illegitimate filiation, the

general rule, as previously stated, is that such change cannot beeffectuated under Article 412 of the Civil Code.

RULE 108 OF THE RULES OF COURT. Rule 108 of the Rulesof Court provides for the procedural rules for the cancellation orcorrection of entries in the civil registry. The procedure is as follows:

“Section 1. Who may file petition. — Any person interested

in any act, event, order or decree concerning the civil status of

persons which has been recorded in the civil register, may file

a verified petition for the cancellation or correction of any entry

relating thereto, with the Court of First Instance of the province

where the corresponding civil registry is located.

Section 2. Entries subject to cancellation or correction. —Upon good and valid grounds, the following entries in the civil





register may be cancelled or corrected (same as Article 408 ofthe Civil Code).

Section 3. Parties. — When cancellation or correction ofan entry in the civil register is sought, the civil registrar and all

persons who have or claim any interest which would be affected

thereby shall be made parties to the proceeding.

Section 4. Notice and publication. — Upon the filing of the

petition, the court shall, by an order, fix the time and place for

the hearing of the same, and cause reasonable notice thereof to

be given to the persons named in the petition. The court shall

also cause the order to be published once a week for three (3)consecutive weeks in a newspaper of general circulation in the

province.

Section 5. Opposition. — The civil registrar and any

person having or claiming any interest under the entry whose

cancellation or correction is sought may, within fifteen (15) days

from notice of the petition, or from the last date of publication of

such notice, file his opposition thereto.

Section 6. Expediting proceedings. — The court in which

the proceeding is brought may make orders expediting theproceedings, and may also grant preliminary injunction for

the preservation of the rights of the parties pending such

proceedings.

Section 7. Order. — After hearing, the court may either

dismiss the petition or issue an order granting the cancellation

or correction prayed for. In either case, a certified copy of the

judgment shall be served upon the civil registrar concerned who

shall annotate the same in his record.

Before, it has been pronounced that Rule 108 deals with thesummary judicial proceeding referred to in Article 412 of the Civil

Code in connection with the changes of clerical and innocuous errors.

However, in Republic v. Valencia, 141 SCRA 462, it was held that if

all the procedural requirements under Rule 108 have been followed,

a petition for correction and/or cancellation of entries in the

record of birth even if filed and conducted under Rule 108 of the

Revised Rules of Court can no longer be described as “summary.”

There can be no doubt that when an opposition to the petitionis filed either by the Civil Registrar or any person having or

claiming any interest in the entries sought to be cancelled

and/or corrected and the opposition is actively prosecuted, the

proceedings thereon become adversary proceedings (Republic v.

Valencia, 141 SCRA 462).

Arts. 411-412



963

Thus, in the said case of Republic v. Valencia, 141 SCRA 462,

where the changes sought in the entries in a record of birth are thefollowing: 1) from “Chinese” to “Filipino”; and 2) from “Legitimate toIllegitimate,” the Supreme Court ruled that, while the case was filedunder Article 412 of the Civil Code which deals with only clericaland innocuous errors which may be corrected by way of a summaryproceeding in court and while the fact that the changes soughtare not mere clerical errors but substantial ones which cannot be

corrected under Article 412, the changes can be allowed if all therequirements under Rule 108 are fulfilled because in such case theproceedings turned into an adversarial one which is the appropriate

judicial proceedings with respect to substantial changes in theentries. The Supreme Court likewise stated:

Provided, the trial court has conducted proceedings where

all relevant facts have been fully and properly developed, where

opposing counsel have been given opportunity to demolish

the opposite party’s case, and where the evidence has been

thoroughly weighed and considered, the suit or proceeding is

“appropriate.”

x x x x x x x x x

In the instant case, a petition for cancellation and/or

correction of entries of birth of Bernardo Go and Jessica Go in

the Civil Registry of the City of Cebu was filed by respondent

Leonor Valencia on January 27, 1970, and pursuant to the order

of the trial court dated February 4, 1970, the said petition was

published once a week for three (3) consecutive weeks in theCebu Advocate, a newspaper of general circulation in the City ofCebu. Notice thereof was duly served on the Solicitor General,the Local Civil Registrar and Go Eng. The order likewise setthe case for hearing and directed the local civil registrar andthe other respondents or any person claiming any interestunder the entries whose corrections were sought, to file theiropposition to the said petition. An opposition to the petition

was consequently filed by the Republic on February 26, 1970.

Thereafter, a full-blown trial followed, with respondent Leonor

Valencia testifying and presenting her documentary evidence in

support of her petition. The Republic on the other hand cross-

examined respondent Leonor Valencia.

We are of the opinion that the petition filed by therespondent in the lower court by way of a special proceeding

for cancellation and/or correction of entries in the civil register

with the requisite notice and publication and the recorded

proceedings that actually took place thereafter could very well

be regarded as that proper suit or appropriate action.





Article 413. All other matters pertaining to the

registration of civil status shall be governed by spe-cial laws.

Act Numbered 3753, otherwise known as the Civil Registry

Law, provides for the registration of documents evidencing the

acquisition or termination of a particular civil status such as

legitimation, adoption, change of name, marriage, termination of

such marriage and others. They have been discussed in this book in

the appropriate chapters dealing with the relevant subjects.

Art. 413

title x to xvi

Documents