PERSONS & FAMILY RELATIONS (Case Digests)

REPUBLIC v. CA

xxx

Facts:
Issue:
Held: he pertinent provision of the Civil Code on
presumption of death provides:
Art. 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.
x x x (Emphasis and underscoring supplied)
Upon the other hand, Article 41 of the Family Code,
upon which the trial court anchored its grant of the
petition for the declaration of presumptive death of the
absent spouse, provides:
Art. 41. A marriage contracted by any person during the
subsistence of a previous marriage shall be null and void,
unless before the celebration of the subsequent marriage,
the prior spouses had been absent for four consecutive
years and the spouse present had a well-founded belief
that the absent spouses was already dead. In case of
disappearance where there is danger of death under the
circumstances set forth in the provisions of Article 391 of
the Civil Code, an absence of only two years shall be
sufficient.
For the purpose pf contracting the subsequent marriage
under the preceding paragraph, the spouses present must
institute a summary proceeding as provided in this
Code for the declaration of presumptive death of the
absentee, without prejudice to the effect of a
reappearance of the absent spouse. (Emphasis and
underscoring supplied)
Rule 41, Section 2 of the Revised Rules of Court, on
Modes of Appeal, invoked by the trial court in
disapproving petitioners Notice of Appeal, provides:
Sec. 2. Modes of appeal. (a) Ordinary appeal. - The appeal to the Court of Appeals
in cases decided by the Regional Trial Court in the exercise
of its original jurisdiction shall be taken by filing a notice of
appeal with the court which rendered the judgment or
final order appealed from and serving a copy thereof upon
the adverse party. No record on appeal shall be required
except in special proceedings and other cases of multiple
or separate appeals where the law or these Rules so
require. In such cases, the record on appeal shall be filed
and served in like manner. (Emphasis and underscoring
supplied)

By the trial courts citation of Article 41 of the Family

Code, it is gathered that the petition of Apolinaria Jomoc
to have her absent spouse declared presumptively
dead had for its purpose her desire to contract a valid
subsequent marriage. Ergo, the petition for that purpose
is a summary proceeding, following above-quoted Art.
41, paragraph 2 of the Family Code.
Since Title XI of the Family Code, entitled SUMMARY
JUDICIAL PROCEEDING IN THE FAMILY LAW, contains the
following provision,inter alia:
xxx
Art. 238. Unless modified by the Supreme Court, the
procedural rules in this Title shall apply in all
cases provided for in this Codes requiring summary court
proceedings. Such cases shall be decided in an
expeditious manner without regard to technical
rules. (Emphasis and underscoring supplied)
x x x,
there is no doubt that the petition of Apolinaria Jomoc
required, and is, therefore, a summary proceeding under
the Family Code, not a special proceeding under the
Revised Rules of Court appeal for which calls for the filing
of a Record on Appeal. It being a summary ordinary
proceeding, the filing of a Notice of Appeal from the trial
courts order sufficed.
That the Family Code provision on repeal, Art. 254,
provides as follows:
Art. 254. Titles III, IV, V, VI, VII, VIII, IX, XI and XV of Book I
of Republic Act No. 386, otherwise known as the Civil Code
of the Philippines, as amended, and Articles 17, 18, 19, 27,
28, 29, 30, 31, 39, 40, 41 and 42 of Presidential Decree No.
603, otherwise known as the Child and Youth Welfare
Code, as amended, and all laws, decrees, executive orders,
proclamations rules and regulations, or parts
thereof, inconsistent therewith are herebyrepealed,
(Emphasis and underscoring supplied),
seals the case in petitioners favor.
Finally, on the alleged procedural flaw in petitioners
petition before the appellate court. Petitioners failure to
attach to his petition before the appellate court a copy of
the trial courts order denying its motion for
reconsideration of the disapproval of its Notice of Appeal
is not necessarily fatal, for the rules of procedure are not
to be applied in a technical sense. Given the issue raised

PERSONS & FAMILY RELATIONS (Case Digests)

before it by petitioner, what the appellate court should
have done was to direct petitioner to comply with the rule.
As for petitioners failure to submit copy of the trial
courts order granting the petition for declaration of
presumptive death, contrary to the appellate courts
observation that petitioner was also assailing it,
[10]
petitioners 8-page petition filed in said court does not
so reflect, it merely having assailed the order disapproving
the Notice of Appeal.
REPUBLIC v. LORINO

Facts: Gloria Bermudez and Francisco Lorino were married

in June 1987. The wife was unaware that her husband was
a habitual drinker with violent attitude and character and
had the propensity to go out with his friends to the point
of being unable to work. In 1991 she left him and returned
to her parents together with her three children. She went
abroad to work for her support her children. From the
time she left him, she had no communication with him or
his relatives.
In 2000, nine years after leaving her husband, Gloria filed a
verified petition with the RTC under the rules on Summary
Judicial Proceedings in the Family Law. The lower court
issued an order for the publication of the petition in a
newspaper of general circulation.
In November 7, 2001, the RTC granted the summary
petition. Although the judgment was final and executors
under the provisions of Act. 247 of the Family Code, the
OSG for the Republic of the Philippines filed a notice of
appeal.
Issue: W/N the factual and legal bases for a judicial
declaration of presumptive death under Art 41 of the
Family Code were duly established.
Held: The Court rules against petitioner Republic.
Article 238 of the Family Code, under Title XI:
SUMMARY JUDICIAL PROCEEDINGS IN THE FAMILY LAW,
sets the tenor for cases covered by these rules, to wit:
Art. 238. Until modified by the Supreme Court, the
procedural rules in this Title shall apply in all cases
provided for in this Code requiring summary court
proceedings. Such cases shall be decided in an expeditious
manner without regard to technical rules.

Judge Elizabeth Balquin-Reyes of RTC, Branch 75, San

Mateo, Rizal duly complied with the above-cited provision
by expeditiously rendering judgment within ninety (90)
days after the formal offer of evidence by therein
petitioner, Gloria Bermudez-Lorino.
The problem came about when the judge gave due
course to the Republics appeal upon the filing of a Notice
of Appeal, and had the entire records of the case elevated
to the Court of Appeals, stating in her order of December
18, 2001, as follows:
Notice of Appeal having been filed through registered mail
on November 22, 2001 by the Office of the Solicitor
General who received a copy of the Decision in this case
on November 14, 2001, within the reglementary period
fixed by the Rules, let the entire records of this case be
transmitted to the Court of Appeals for further
proceedings.
SO ORDERED.

[10]

In Summary Judicial Proceedings under the Family

Code, there is no reglementary period within which to
perfect an appeal, precisely because judgments rendered
thereunder, by express provision of Section 247, Family
Code, supra, are immediately final and executory. It was
erroneous, therefore, on the part of the RTC to give due
course to the Republics appeal and order the transmittal
of the entire records of the case to the Court of Appeals.
An appellate court acquires no jurisdiction to review
a judgment which, by express provision of law, is
immediately final and executory. As we have said in
[11]
Veloria vs. Comelec, the right to appeal is not a natural
right nor is it a part of due process, for it is merely a
statutory privilege. Since, by express mandate of Article
247 of the Family Code, all judgments rendered in
summary judicial proceedings in Family Law are
immediately final and executory, the right to appeal was
not granted to any of the parties therein. The Republic of
the Philippines, as oppositor in the petition for declaration
of presumptive death, should not be treated differently. It
had no right to appeal the RTC decision of November 7,
2001.
It was fortunate, though, that the Court of Appeals,
acting through its Special Fourth Division, with Justice Elvi
John S. Asuncion as Acting Chairman and ponente, denied
the Republics appeal and affirmed without modification
the final and executory judgment of the lower court. For,
[12]
as we have held in Nacuray vs. NLRC:
Nothing is more settled in law than that when a judgment
becomes final and executory it becomes immutable and
unalterable. The same may no longer be modified in any
respect, even if the modification is meant to correct what

PERSONS & FAMILY RELATIONS (Case Digests)

is perceived to be an erroneous conclusion of fact or law,
and whether made by the highest court of the land
(citing Nunal v. Court of Appeals, G.R. No. 94005, 6 April
1993, 221 SCRA 26).
But, if only to set the records straight and for the
future guidance of the bench and the bar, let it be stated
that the RTCs decision dated November 7, 2001, was
immediately final and executory upon notice to the
parties. It was erroneous for the OSG to file a notice of
appeal, and for the RTC to give due course thereto. The
Court of Appeals acquired no jurisdiction over the case,
and should have dismissed the appeal outright on that
ground.
This judgment of denial was elevated to this Court
via a petition for review on certiorari under Rule 45.
Although the result of the Court of Appeals denial of the
appeal would apparently be the same, there is a big
difference between having the supposed appeal dismissed
for lack of jurisdiction by virtue of the fact that the RTC
decision sought to be appealed is immediately final and
executory, and the denial of the appeal for lack of merit.
In the former, the supposed appellee can immediately ask
for the issuance of an Entry of Judgment in the RTC,
whereas, in the latter, the appellant can still raise the
matter to this Court on petition for review and the RTC
judgment cannot be executed until this Court makes the
final pronouncement.
The Court, therefore, finds in this case grave error on
the part of both the RTC and the Court of Appeals. To
stress, the Court of Appeals should have dismissed the
appeal on ground of lack of jurisdiction, and reiterated the
fact that the RTC decision of November 7, 2001 was
immediately final and executory. As it were, the Court of
Appeals committed grave reversible error when it failed to
dismiss the erroneous appeal of the Republic on ground of
lack of jurisdiction because, by express provision of law,
the judgment was not appealable.
REPUBLIC v. TANGO
Facts: In 1987, Ferventino Tango, respondent, and Maria
Jose Villarba were married in civil rites. Tango and Villarba
had only spent a night together and had been intimate
once when Villarba told Ferventino that she and her family
will soon be leaving for the USA. Villarba assured Tango
that the former will file a petition so that the latter can live
with her in the USA and in the event that the petition is
denied, Villarba promised to return to the Philippines to
live with Tango. Thereafter, Villarba and her family flew to
Seattle, USA. Tango and Villarba kept in touch for a year
before Villarba stopped responding to Tangos letters.
Tango had inquired from Villarbas uncle of Villarbas
whereabouts but it turned out that even the latters
relatives had no idea. Tango solicited the assistance of a
friend in Texas, but to no avail. Finally, Tango sought the

aid of his parents in Los Angeles and his aunt in Seattle,

but again, to no avail.
This prompted Tango to file a petition before the
RTC for the declaration of presumptive death of Villarba
under Article 41 of the Family Code. The RTC issued an
Order declaring Villarba presumptively dead. On appeal by
the Republic of the Philippines, the CA affirmed the RTCs
order.
Issue: Whether Tango has established a basis to form a
well-founded belief that his absent spouse is already dead
Held: By express provision of law, the judgment of the
court in a summary proceeding shall be immediately final
and executory. As a matter of course, it follows that no
appeal can be had of the trial courts judgment in a
summary proceeding for the declaration of presumptive
death of an absent spouse under Article 41 of the Family
Code. It goes without saying, however, that an aggrieved
party may file a petition for certiorari to question abuse of
discretion amounting to lack of jurisdiction. Such petition
should be filed in the Court of Appeals in accordance with
the Doctrine of Hierarchy of Courts. To be sure, even if the
Courts original jurisdiction to issue a writ of certiorari is
concurrent with the RTCs and the Court of Appeals in
certain cases, such concurrence does not sanction an
unrestricted freedom of choice of court forum.
From the decision of the Court of Appeals, the
losing party may then file a petition for review on
certiorari under Rule 45 of the Rules of Court with the
Supreme Court. This is because the errors which the court
may commit in the exercise of jurisdiction are merely
errors of judgment which are the proper subject of an
appeal.
In the case before us, petitioner committed a
serious procedural lapse when it filed a notice of appeal in
the Court of Appeals instead of a petition for certiorari.
The RTC equally erred in giving due course to said appeal
and ordering the transmittal of the records of the case to
the appellate court. By no means did the Court of Appeals
acquire jurisdiction to review the judgment of the RTC
which, by express provision of law, was immediately final
and executory. Adding to the confusion, the Court of
Appeals entertained the appeal and treated the same as
an ordinary appeal under Rule 41 of the Rules of Court. As
it were, the Court of Appeals committed grave reversible
error when it failed to dismiss the erroneous appeal of the
Republic on the ground of lack of jurisdiction because, by
express provision of the law, the judgment was not
appealable.
REPUBLIC v. CA

PERSONS & FAMILY RELATIONS (Case Digests)

Facts: T h e p e t i t i o n e r w a s b o r n a t C a p i t o l
Medical Center in Quezon City on January
1 9 , 1 9 7 1 t o parents Pablo Castro Vicencio and Fe
Esperanza de Vega Leabres. On January 10, 1927, after
amarital disagreement, Vicencio left
their Meycauayan
Bulacan conjugal property
and never returned nor gave support to his
family. Leabres found an ally in Ernesto Yu who
would later end up as her husband. On June 29, 1976,
Leabres filed a petition , known as Civil case number E02009 with the Juvenile and Domestic Relations
Court
for
the
dissolution
of
her
conjugalpartnership with Vicencio. In a decision
given by Hon Regina C. Ordoez Benitez dated
July11, 1977, the petition was granted. The petitioners
mother filed another petition in 1983 to dropthe
surname of her husband therefrom and this,
known
as
Special
Proclamation
8316346
wasagain approved in a decision rendered by
Hon. Emeterio C. Cui of Branch XXV. Yet
again,under Special Proclamation number 84-22605,
Leabres filed a petition to declare Pablo Vicencioan
absentee. Hon. Corona Ibay- Somera decided in favour of
the petitioners mother on April 26,1984. The positive
results of these petitions paved the way for the
marriage of the petitionersmother and Ernesto Yu
on April 15, 1986.
Evidence was established that the petitioner had
not remembered much her real father,
PabloVicencio, and that in his absence, it was Ernesto Yu
who had taken Vicencios place. Althoughpetitioner uses
the surname Vicencio in her school and other related
activities, she contends thatin such situations, confusion
arose as to her parentage leading to inquiries as to why
she is usingVicencio as surname ; causing much
embarrassment on her part. In two occasions when she
ranas a beauty contestant for Lions Club Affair and Manila
Red Cross, her name was registered asCynthia L. Yu. His
stepfather had given his consent thereto upon prior
consultation with him.
The Office of the Solicitor General (OSG) , having
participated
in
the
cross
examination
of Cynthia Vicencio
and her
witnesses, manifested
opposition over
the petition. The court arguedthat there was no
valid cause for the denial of the petition and
that taking into account the factthat the court
cannot compel the stepfather of the petitioner
to consider adoption , failure toobserve the process
should not be a cause for disallowing petitioner to legally
change her name,in addition to the opportunity of the
respondent to improve her personality and welfare under
asocially recognized surname, that of her
stepfather. On August 31, 1987, the Manila
RegionalTrial Court Branch 52 granted private

respondent Cynthia Vicencios petition for

change of surname from Vicencio to Yu. The
same was affirmed by the decision of the Court
of Appealsdated April 28, 1989.
Issue: W/N the appellate court erred in affirming the trial
courts decision allowing the change of private
respondents surname to that of her step-fathers
surname.
[7]

Held: In Republic vs. Hernandez , we have

recognized inter alia, the following as sufficient grounds to
warrant a change of name: (a) when the name is
ridiculous, dishonorable or extremely difficult to write or
pronounce; (b) when the change is a legal consequence of
legitimation or adoption; (c) when the change will avoid
confusion; (d) when one has continuously used and been
known since childhood by a Filipino name and was
unaware of alien parentage; (e) when the change is based
on a sincere desire to adopt a Filipino name to erase signs
of former alienage, all in good faith and without prejudice
to anybody; and (f) when the surname causes
embarrassment and there is no showing that the desired
change of name was for a fraudulent purpose, or that the
change of name would prejudice public interest.
Private respondent asserts that her case falls under
one of the justifiable grounds aforecited. She says that
confusion has arisen as to her parentage because ever
since childhood, Ernesto Yu has acted as her father,
assuming duties of rearing, caring and supporting
her. Since she is known in society as the daughter of
Ernesto Yu, she claims that she has been subjected to
inquiries regarding her use of a different surname, causing
her much humiliation and embarrassment. However, it is
not denied that private respondent has used Vicencio as
her surname in her school records and related
documents. But she had used the surname of her stepfather, Yu, when she participated in public functions, such
as entering beauty contests, namely, with the Lions Club
and the Manila Red Cross, and when she celebrated her
[8]
debut at the Manila Hotel.
The Solicitor General however argues that there is
no proper and reasonable cause to warrant private
respondents change of surname. Such change might even
cause confusion and give rise to legal complications due to
the fact that private respondents step-father has two (2)
children with her mother. In the event of her step-fathers
death, it is possible that private respondent may even
claim inheritance rights as a legitimate daughter. In his
memorandum, the Solicitor General, opines that
Ernesto Yu has no intention of making Cynthia as an heir
because despite the suggestion made before the petition
for change of name was heard by the trial court that the
change of family name to Yu could very easily be achieved
[9]
by adoption, he has not opted for such a remedy.

PERSONS & FAMILY RELATIONS (Case Digests)

We find merit in the Solicitor Generals contention.
The touchstone for the grant of a change of name is
that there be proper and reasonable cause for which the
[10]
change is sought. The assailed decision as affirmed by
the appellate court does not persuade us to depart from
the applicability of the general rule on the use of
[11]
surnames , specifically the law which requires
that legitimate children shall principally use the surname
[12]
of their father .
Private respondent Cynthia Vicencio is the legitimate
offspring of Fe Leabres and Pablo Vicencio. As previously
stated, a legitimate child generally bears the surname of
his or her father. It must be stressed that a change of
name is a privilege, not a matter of right, addressed to the
sound discretion of the court, which has the duty to
consider carefully the consequences of a change of name
and to deny the same unless weighty reasons are
[13]
shown.
Confusion indeed might arise with regard to private
respondents parentage because of her surname. But
even, more confusion with grave legal consequences could
arise if we allow private respondent to bear her stepfathers surname, even if she is not legally adopted by him.
While previous decisions have allowed children to bear the
surname of their respective step-fathers even without the
benefit of adoption, these instances should be
distinguished from the present case. In Calderon vs.
[14]
[15]
Republic, and Llaneta vs. Agrava, this Court allowed
the concerned child to adopt the surname of the stepfather, but unlike the situation in the present case where
private respondent is a legitimate child, in those cases the
children were not of legitimate parentage. In Moore vs.
[16]
Republic, where the circumstances appears to be similar
to the present case before us, the Court upheld the
Republics position:
We find tenable this observation of governments
counsel. Indeed, if a child born out of a lawful wedlock be
allowed to bear the surname of the second husband of the
mother, should the 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
[17]
which we cannot at present overlook or brush aside.

that:

Similarly in Padilla vs. Republic,

[18]

To allow said minors to adopt the surname of their

mothers second husband, who is not their father, could
result in confusion in their paternity. It could also create
the suspicion that said minors, who were born during the
coverture of their mother with her first husband, were in
fact sired by Edward Padilla, thus bringing their legitimate
[19]
status into discredit.
Private respondent, might sincerely wish to be in a
position similar to that of her step-fathers legitimate
children, a plausible reason the petition for change of
name was filed in the first place. Moreover, it is laudable
that Ernesto Yu has treated Cynthia as his very own
daughter, providing for all her needs as a father would his
own flesh and blood. However, legal constraints lead us to
reject private respondents desire to use her stepfathers
surname. Further, there is no assurance the end result
would not be even more detrimental to her person, for
instead of bringing a stop to questions, the very change of
name, if granted, could trigger much deeper inquiries
regarding her parentage.
Lastly, when this case was decided by the appellate
court, private respondent was already 18 years old but still
considered
a
minor
because Republic
Act
[20]
6809, lowering the age of majority, was then in effect.
However, regardless of private respondents age, our
conclusion remains considering the circumstances before
us and the lack of any legally justifiable cause for allowing
the change of her surname.
IN RE PETITION JULIAN LIN CARULASAN WANG1
Facts: Mother of Julian Lin filed a petition to drop Julians
middle name Carulasan since they will be living in
Singapore. She avers that Singaporean names do not have
middle names. Moreover, this will cause embarassment to
Julian Lin.
RTC denied the petition. It likewise denied petitioners
MFR.
Issue: W/N dropping the middle name of a minor child is
contrary to Article 174 of the Family Code.
Held: We affirm the decision of the trial court. The
petition should be denied.

1 I will not blot out his name out of the book of life.
the Court ruled
Revelation 3:5

PERSONS & FAMILY RELATIONS (Case Digests)

The Court has had occasion to express the view that
the State has an interest in the names borne by
individuals and entities for purposes of identification,
and that a change of name is a privilege and not a right,
so that before a person can be authorized to change his
name given him either in his certificate of birth or civil
registry, he must show proper or reasonable cause, or
any compelling reason which may justify such change.
[14]
Otherwise, the request should be denied.
The touchstone for the grant of a change of name is
that there be proper and reasonable cause for which the
[15]
change is sought. To justify a request for change of
name, petitioner must show not only some proper or
compelling reason therefore but also that he will be
prejudiced by the use of his true and official name. Among
the grounds for change of name which have been held
valid are: (a) when the name is ridiculous, dishonorable
or extremely difficult to write or pronounce; (b) when the
change results as a legal consequence, as in legitimation;
(c) when the change will avoid confusion; (d) when one
has continuously used and been known since childhood
by a Filipino name, and was unaware of alien parentage;
(e) a sincere desire to adopt a Filipino name to erase
signs of former alienage, all in good faith and without
prejudicing anybody; and (f) when the surname causes
embarrassment and there is no showing that the desired
change of name was for a fraudulent purpose or that the
[16]
change of name would prejudice public interest.
In granting or denying petitions for change of name,
the question of proper and reasonable cause is left to the
sound discretion of the court. The evidence presented
need only be satisfactory to the court and not all the best
evidence available. What is involved is not a mere matter
of allowance or disallowance of the request, but a
judicious evaluation of the sufficiency and propriety of the
justifications advanced in support thereof, mindful of the
consequent results in the event of its grant and with the
sole prerogative for making such determination being
[17]
lodged in the courts.
The petition before us is unlike other petitions for
change of name, as it does not simply seek to change the
name of the minor petitioner and adopt another, but
instead seeks to drop the middle name altogether.
Decided cases in this jurisdiction involving petitions for
change of name usually deal with requests for change of
surname. There are only a handful of cases involving
[18]
requests for change of the given name and none on
requests for changing or dropping of the middle name.
Does the law allow one to drop the middle name from his
registered name? We have to answer in the negative.
A discussion on the legal significance of a persons
name is relevant at this point. We quote, thus:

For all practical and legal purposes, a man'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. Names are used merely
as one method of indicating the identity of persons; they
are descriptive of persons for identification, since, the
identity is the essential thing and it has frequently been
held that, when identity is certain, a variance in, or
misspelling of, the name is immaterial.
The names of individuals usually have two parts: the given
name or proper name, and the surname or family name.
The given or proper name is that which is given to the
individual at birth or baptism, to distinguish him from
other individuals. The name 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.
A name is said to have the following characteristics: (1) It
is absolute, intended to protect the individual from being
confused 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 may be 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
[19]
vivos or mortis causa. (5) It is imprescriptible.
This citation does not make any reference to middle
names, but this does not mean that middle names have no
practical or legal significance. Middle names serve to
identify the maternal lineage or filiation of a person as
well as further distinguish him from others who may
have the same given name and surname as he has.
Our laws on the use of surnames state that
legitimate and legitimated children shall principally use
[20]
the surname of the father. The Family Code gives
legitimate children the right to bear the surnames of the
[21]
father and the mother, while illegitimate children shall
use the surname of their mother, unless their father
recognizes their filiation, in which case they may bear the
[22]
fathers surname.
Applying these laws, an illegitimate child whose
filiation is not recognized by the father bears only a given
name and his mothers surname, and does not have a
middle name. The name of the unrecognized illegitimate
child therefore identifies him as such. It is only when the
illegitimate child is legitimated by the subsequent
marriage of his parents or acknowledged by the father in

PERSONS & FAMILY RELATIONS (Case Digests)

a public document or private handwritten instrument
that he bears both his mothers surname as his middle
name and his fathers surname as his surname, reflecting
his status as a legitimated child or an acknowledged
illegitimate child.
Accordingly, the registration in the civil registry of
the birth of such individuals requires that the middle
name be indicated in the certificate. The registered
name of a legitimate, legitimated and recognized
illegitimate child thus contains a given or proper name, a
middle name, and a surname.
Petitioner theorizes that it would be for his best
interest to drop his middle name as this would help him to
adjust more easily to and integrate himself into
Singaporean society. In support, he cites Oshita v.
[23]
[24]
Republic and Calderon v. Republic, which, however,
are not apropos both.
In Oshita, the petitioner therein, a legitimate
daughter of a Filipino mother, Buena Bartolome, and a
Japanese father, Kishimatsu Oshita, sought to change her
name from Antonina B. Oshita to Antonina Bartolome.
The Court granted her petition based on the following
considerations: she had elected Philippine citizenship upon
reaching the age of majority; her other siblings who had
also elected Philippine citizenship have been using their
mothers surname; she was embarrassed to bear a
Japanese surname there still being ill feeling against the
Japanese due to the last World War; and there was no
showing that the change of name was motivated by a
fraudulent purpose or that it will prejudice public interest.
In Calderon, the Court allowed petitioner Gertrudes
Josefina del Prado, an illegitimate minor child acting
through her mother who filed the petition in her behalf, to
change her name to Gertudes Josefina Calderon, taking
the surname of her stepfather, Romeo C. Calderon, her
mothers husband. The Court held that a petition for
change of name of an infant should be granted where to
do is clearly for the best interest of the child. The Court
took into consideration the opportunity provided for the
minor petitioner to eliminate the stigma of illegitimacy
which she would carry if she continued to use the surname
of her illegitimate father. The Court pronounced that
justice dictates that every person be allowed to avail of
any opportunity to improve his social standing as long as
doing so he does not cause prejudice or injury to the
interests of the State or of other people.
[25]

Petitioner cites Alfon v. Republic, in arguing that

although Article 174 of the Family Code gives the
legitimate child the right to use the surnames of the father
and the mother, it is not mandatory such that the child
could use only one family name, even the family name of
the mother. In Alfon, the petitioner therein, the legitimate
daughter of Filomeno Duterte and Estrella Alfon, sought to
change her name from Maria Estrella Veronica Primitiva

Duterte (her name as registered in the Local Civil Registry)

to Estrella S. Alfon (the name she had been using since
childhood, in her school records and in her voters
registration). The trial court denied her petition but this
Court overturned the denial, ruling that while Article 364
of the Civil Code states that she, as a legitimate child,
should principally use the surname of her father, there is
no legal obstacle for her to choose to use the surname of
herm other to which she is entitled. In addition, the Court
found that there was ample justification to grant her
petition, i.e., to avoid confusion.
Weighing petitioners reason of convenience for the
change of his name against the standards set in the cases
he cites to support his contention would show that his
justification is amorphous, to say the least, and could not
warrant favorable action on his petition.
The factual antecedents and unique circumstances
of the cited cases are not at all analogous to the case at
bar. The instant case is clearly distinguishable from the
cases of Oshita and Alfon, where the petitioners were
already of age when they filed their petitions for change
of name. Being of age, they are considered to have
exercised their discretion and judgment, fully knowing
the effects of their decision to change their surnames. It
can also be unmistakably observed that the reason for
the grant of the petitions for change of name in these
two cases was the presence of reasonable or compelling
grounds therefore. The Court, in Oshita, recognized the
tangible animosity most Filipinos had during that time
against the Japanese as a result of World War II, in
addition to the fact of therein petitioners election of
Philippine citizenship. In Alfon, the Court granted the
petition since the petitioner had been known since
childhood by a name different from her registered name
and she had not used her registered name in her school
records and voters registration records; thus, denying
the petition would only result to confusion.
Calderon, on the other hand, granted the petition for
change of name filed by a mother in behalf of her
illegitimate minor child. Petitioner cites this case to
buttress his argument that he does not have to reach the
age of majority to petition for change of name. However,
it is manifest in Calderon that the Court, in granting the
petition for change of name, gave paramount
consideration to the best interests of the minor
petitioner therein.
In the case at bar, the only reason advanced by
petitioner for the dropping his middle name is
convenience. However, how such change of name would
make his integration into Singaporean society easier and
convenient is not clearly established. That the continued
use of his middle name would cause confusion and
difficulty does not constitute proper and reasonable
cause to drop it from his registered complete name.

PERSONS & FAMILY RELATIONS (Case Digests)

In addition, petitioner is only a minor. Considering
the nebulous foundation on which his petition for change
of name is based, it is best that the matter of change of
his name be left to his judgment and discretion when he
[26]
reaches the age of majority.
As he is of tender age, he
may not yet understand and appreciate the value of the
change of his name and granting of the same at this point
may just prejudice him in his rights under our laws.
IN THE MATTER OF ADOPTION OF NATHY ASTORGA
GARCIA2
THERE IS NO LAW W/C PROHIBITS AN ILLEGITIMATE
CHILD ADOPTED BY HER NATURAL FATHER FROM
BEARING THE SURNAME OF HER MOTHER AS HER
MIDDLE NAME
Facts: On August 31, 2000, Honorato B. Catindig, herein
[1]
petitioner, filed a petition to adopt his minor illegitimate
child Stephanie Nathy Astorga Garcia. He alleged therein,
among others, that Stephanie was born on June 26,
[2]
1994; that her mother is Gemma Astorga Garcia; that
Stephanie has been using her mothers middle name and
surname; and that he is now a widower and qualified to be
her adopting parent. He prayed that Stephanies middle
name Astorga be changed to Garcia, her mothers
surname, and that her surname Garcia be changed to
Catindig, his surname.
On April 20, 2001, petitioner filed a motion for clarification
[5]
and/or reconsideration praying that Stephanie should be
allowed to use the surname of her natural mother
(GARCIA) as her middle name.
TC granted the adoption but denied petitioners motion
for reconsideration holding that there is no law or
jurisprudence allowing an adopted child to use the
surname of his biological mother as his middle name.
Issue: W/N an illegitimate child may use the surname of
her mother as her middle name when she is subsequently
adopted by her natural father.
Held: We find merit in the petition.
Use Of Surname Is Fixed By Law
For all practical and legal purposes, a man'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

[8]
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
[9]
surname to which the child is entitled is fixed by law.
Thus, Articles 364 to 380 of the Civil Code provides
the substantive rules which regulate the use of
[10]
surname of an individual whatever may be his status in
life, i.e., whether he may be legitimate or illegitimate, an
adopted child, a married woman or a previously married
woman, or a widow, thus:
Art. 364. Legitimate and legitimated children shall
principally use the surname of the father.
Art. 365. An adopted child shall bear the surname of the
adopter.
xxx
Art. 369. Children conceived before the decree annulling a
voidable marriage shall principally use the surname of the
father.
Art. 370. A married woman may use:
(1) Her maiden first name and surname and add her
husband's surname, or
(2) Her maiden first name and her husband's surname or
(3) Her husband's full name, but prefixing a word
indicating that she is his wife, such as Mrs.
Art. 371. In case of annulment of marriage, and the wife is
the guilty party, she shall resume her maiden name
and surname. If she is the innocent spouse, she may
resume her maiden name and surname. However, she may
choose to continue employing her former husband's
surname, unless:
(1) The court decrees otherwise, or

2 May an illegitimate child, upon adoption by her natural

father, use the surname of her natural mother as her
middle name? This is the issue raised in the instant case.

(2) She or the former husband is married again to another

person.

PERSONS & FAMILY RELATIONS (Case Digests)

Art. 372. When legal separation has been granted, the wife
shall continue using her name and surname employed
before the legal separation.
Art. 373. A widow may use the deceased
husband's surname as though he were still living, in
accordance with Article 370.
Art. 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.
Art. 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 surname,
(2) Add the Roman numerals II, III, and so on.
x x x
Law Is Silent As To The Use Of
Middle Name
As correctly submitted by both parties, there is no
law regulating the use of a middle name. Even Article
[11]
176 of the Family Code, as amended by Republic Act No.
9255, otherwise known as An Act Allowing Illegitimate
Children To Use The Surname Of Their Father, is silent as
to what middle name a child may use.
The middle name or the mothers surname is only
considered in Article 375(1), quoted above, in case there is
identity of names and surnames between ascendants and
descendants, in which case, the middle name or the
mothers surname shall be added.
Notably, the law is likewise silent as to what middle
name an adoptee may use. Article 365 of the Civil Code
merely provides that an adopted child shall bear the
surname of the adopter. Also, Article 189 of the Family
Code, enumerating the legal effects of adoption, is
likewise silent on the matter, thus:
"(1) For civil purposes, the adopted shall be deemed to
be a legitimate child of the adopters and both shall
acquire the reciprocal rights and obligations arising from
the relationship of parent and child, including the right of
the adopted to use the surname of the adopters;
x x x

However, as correctly pointed out by the OSG, the

members of the Civil Code and Family Law Committees
that drafted the Family Coderecognized the Filipino
custom of adding the surname of the childs mother as
his middle name. In the Minutes of the Joint Meeting of
the Civil Code and Family Law Committees, the members
approved the suggestion that the initial or surname of the
mother should immediately precede the surname of the
father, thus
Justice Caguioa commented that there is a difference
between the use by the wife of the surname and that of
the child because the fathers surname indicates the
family to which he belongs, for which reason he would
insist on the use of the fathers surname by the child but
that, if he wants to, the child may also use the surname
of the mother.
Justice Puno posed the question: If the child chooses to
use the surname of the mother, how will his name be
written? Justice Caguioa replied that it is up to him but
that his point is that it should be mandatory that the child
uses the surname of the father and permissive in the case
of the surname of the mother.
Prof. Baviera remarked that Justice Caguioas point is
covered by the present Article 364, which reads:
Legitimate and legitimated children shall principally use
the surname of the father.
Justice Puno pointed out that many names change through
no choice of the person himself precisely because of this
misunderstanding. He then cited the following example:
Alfonso Ponce Enriles correct surname is Ponce since the
mothers surname is Enrile but everybody calls him Atty.
Enrile. Justice Jose Gutierrez Davids family name is
Gutierrez and his mothers surname is David but they all
call him Justice David.
Justice Caguioa suggested that the proposed Article (12)
be modified to the effect that it shall be mandatory on
the child to use the surname of the father but he may use
the surname of the mother by way of an initial or a
middle name. Prof. Balane stated that they take note of
this for inclusion in the Chapter on Use of Surnames since
in the proposed Article (10) they are just enumerating the
rights of legitimate children so that the details can be
covered in the appropriate chapter.
xxx
Justice Puno remarked that there is logic in the
simplification suggested by Justice Caguioa that the
surname of the father should always be last because there

PERSONS & FAMILY RELATIONS (Case Digests)

10

are so many traditions like the American tradition where

they like to use their second given name and the Latin
tradition, which is also followed by the Chinese wherein
they even include the Clan name.

above. This is consistent with the intention of the

members of the Civil Code and Family Law Committees as
earlier discussed. In fact, it is a Filipino custom that the
initial or surname of the mother should immediately
precede the surname of the father.

xxx

Additionally, as aptly stated by both parties,

Stephanies continued use of her mothers surname
(Garcia) as her middle name will maintain her maternal
lineage. It is to be noted that Article 189(3) of the Family
[24]
Code and Section 18 , Article V of RA 8552 (law on
adoption) provide that the adoptee remains an intestate
heir of his/her biological parent. Hence, Stephanie can
well assert or claim her hereditary rights from her natural
mother in the future.

Justice Puno suggested that they agree in principle that in

the Chapter on the Use of Surnames, they should say that
initial or surname of the mother should immediately
precede the surname of the father so that the second
name, if any, will be before the surname of the mother.
Prof. Balane added that this is really the Filipino way.
[12]
The Committee approved the suggestion. (Emphasis
supplied)
In the case of an adopted child, the law provides that
the adopted shall bear the surname of the
[13]
adopters. Again, it is silent whether he can use a
middle name. What it only expressly allows, as a matter
of right and obligation, is for the adoptee to bear the
surname of the adopter, upon issuance of the decree of
[14]
adoption.
The Underlying Intent of
Adoption Is In Favor of the
Adopted Child
Adoption is defined as the process of making a child,
whether related or not to the adopter, possess in general,
[15]
the rights accorded to a legitimate child. It is a juridical
act, a proceeding in rem which creates between two
persons a relationship similar to that which results from
[16]
legitimate paternity and filiation. The modern trend is to
consider adoption not merely as an act to establish a
relationship of paternity and filiation, but also as an act
[17]
which endows the child with a legitimate status. This
was, indeed, confirmed in 1989, when thePhilippines, as
a State Party to the Convention of the Rights of the Child
initiated by the United Nations, accepted the principle
that adoption is impressed with social and moral
responsibility, and that its underlying intent is geared to
[18]
favor the adopted child.
Republic Act No. 8552,
otherwise known as the Domestic Adoption Act of
[19]
1998, secures these rights and privileges for the
[20]
adopted.
One of the effects of adoption is that the adopted is
deemed to be a legitimate child of the adopter for all
[21]
intents and purposes pursuant to Article 189 of the
[22]
[23]
Family Code and Section 17 Article V of RA 8552.
Being a legitimate child by virtue of her adoption, it
follows that Stephanie is entitled to all the rights
provided by law to a legitimate child without
discrimination of any kind, including the right to bear the
surname of her father and her mother, as discussed

Moreover, records show that Stephanie and her

mother are living together in the house built by
petitioner for them at 390 Tumana, San Jose, Baliuag,
Bulacan. Petitioner provides for all their needs.
Stephanie is closely attached to both her mother and
father. She calls them Mama and Papa. Indeed, they
are one normal happy family. Hence, to allow Stephanie
to use her mothers surname as her middle name will not
only sustain her continued loving relationship with her
mother but will also eliminate the stigma of her
illegitimacy.
Liberal Construction of
Adoption Statutes In Favor Of
Adoption
It is a settled rule that adoption statutes, being
humane and salutary, should be liberally construed to
[25]
carry out the beneficent purposes of adoption. The
interests and welfare of the adopted child are of primary
[26]
every
and
paramount
consideration, hence,
reasonable intendment should be sustained to promote
and fulfill these noble and compassionate objectives of
[27]
the law.
Lastly, Art. 10 of the New Civil Code provides that:
In case of doubt in the interpretation or application of
laws, it is presumed that the lawmaking body intended
right and justice to prevail.
This provision, according to the Code Commission,
is necessary so that it may tip the scales in favor of right
and justice when the law is doubtful or obscure. It will
strengthen the determination of the courts to avoid an
injustice which may apparently be authorized by some
[28]
way of interpreting the law.
Hence, since there is no law prohibiting
an illegitimate child adopted by her natural father, like
Stephanie, to use, as middle name her mothers surname,

PERSONS & FAMILY RELATIONS (Case Digests)

we find no reason why she should not be allowed to do
so.
REPUBLIC v. CAPOTE
Facts: Giovanni, through his legal guardian, petitioned the
court to changed his surname from GALLAMASO to
NADORES since the failure of his father to extend
support. Moreover, his mother may petition him soon to
join her in the United States.
RTC granted change of name.
CA affirmed RTCs ruling.
Issue: W/N the CA erred when it upheld RTCs ruling.
Held: We deny the petition.
"The subject of rights must have a fixed symbol for
individualization which serves to distinguish him from all
13
others; this symbol is his name." Understandably,
therefore, no person can change his name or surname
14
without judicial authority. This is a reasonable
requirement for those seeking such change because a
persons name necessarily affects his identity, interests
and interactions. The State must be involved in the
process and decision to change the name of any of its
citizens.
The Rules of Court provides the requirements and
procedure for change of name. Here, the appropriate
15
remedy is covered by Rule 103, a separate and distinct
proceeding from Rule 108 on mere cancellation and
correction of entries in the civil registry (usually dealing
16
only with innocuous or clerical errors thereon).
The issue of non-joinder of alleged indispensable parties in
the action before the court a quo is intertwined with the
nature of the proceedings there. The point is whether the
proceedings were sufficiently adversarial.
Summary proceedings do not extensively address the
issues of a case since the reason for their conduct is
expediency. This, according to petitioner, is not sufficient
to deal with substantial or contentious issues allegedly
resulting from a change of name, meaning, legitimacy as
17
well as successional rights. Such issues are ventilated
only in adversarial proceedings wherein all interested
18
parties are impleaded and due process is observed.
When Giovanni was born in 1982 (prior to the enactment
19
and effectivity of the Family Code of the Philippines), the
pertinent provision of the Civil Code then as regards his
use of a surname, read:

11

Art. 366. A natural child acknowledged by both parents

shall principally use the surname of the father. If
recognized by only one of the parents, a natural child shall
employ the surname of the recognizing parent. (emphasis
ours)
Based on this provision, Giovanni should have carried his
mothers surname from birth. The records do not reveal
any act or intention on the part of Giovannis putative
father to actually recognize him. Meanwhile, according to
the Family Code which repealed, among others, Article
366 of the Civil Code:
Art. 176. 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.
xxx xxx xxx (emphasis ours)
Our ruling in the recent case of In Re: Petition for Change
of Name and/or Correction/Cancellation of Entry in Civil
20
Registry of Julian Lin Carulasan Wang is enlightening:
Our laws on the use of surnames state that legitimate and
legitimated children shall principally use the surname of
the father. The Family Code gives legitimate children the
right to bear the surnames of the father and the mother,
while illegitimate children shall use the surname of their
mother, unless their father recognizes their filiation, in
which case they may bear the fathers surname.
Applying these laws, an illegitimate child whose filiation is
not recognized by the father bears only a given name and
his mother surname, and does not have a middle
name. The name of the unrecognized illegitimate child
therefore identifies him as such. It is only when the
illegitimate child is legitimated by the subsequent
marriage of his parents or acknowledged by the father in a
public document or private handwritten instrument that
he bears both his mothers surname as his middle name
and his fathers surname as his surname, reflecting his
status as a legitimated child or an acknowledged
21
child.1awphi1.net
The foregoing discussion establishes the significant
connection of a persons name to his identity, his status in
relation to his parents and his successional rights as a
legitimate or illegitimate child. For sure, these matters
should not be taken lightly as to deprive those who may, in
any way, be affected by the right to present evidence in
favor of or against such change.
The law and facts obtaining here favor Giovannis
petition. Giovanni availed of the proper remedy, a
petition for change of name under Rule 103 of the Rules
of Court, and complied with all the procedural

PERSONS & FAMILY RELATIONS (Case Digests)

requirements. After hearing, the trial court found (and the
appellate court affirmed) that the evidence presented
during the hearing of Giovannis petition sufficiently
established that, under Art. 176 of the Civil Code, Giovanni
is entitled to change his name as he was never recognized
by his father while his mother has always recognized him
as her child. A change of name will erase the impression
that he was ever recognized by his father. It is also to his
best interest as it will facilitate his mothers intended
petition to have him join her in the United States. This
Court will not stand in the way of the reunification of
mother and son.
Moreover, it is noteworthy that the cases cited by
22
petitioner in support of its position deal with cancellation
or correction of entries in the civil registry, a proceeding
separate and distinct from the special proceedings for
change of name. Those cases deal with the application and
interpretation of Rule 108 of the Rules of Court while this
case was correctly filed under Rule 103. Thus, the cases
cited by petitioner are irrelevant and have no bearing on
respondents case. While the OSG is correct in its stance
that the proceedings for change of name should be
adversarial, the OSG cannot void the proceedings in the
trial court on account of its own failure to participate
therein. As the CA correctly ruled:
The OSG is correct in stating that a petition for change of
name must be heard in an adversarial proceeding. Unlike
petitions for the cancellation or correction of clerical
errors in entries in the civil registry under Rule 108 of the
Rules of Court, a petition for change of name under Rule
103 cannot be decided through a summary proceeding.
There is no doubt that this petition does not fall under
Rule 108 for it is not alleged that the entry in the civil
registry suffers from clerical or typographical errors. The
relief sought clearly goes beyond correcting erroneous
entries in the civil registry, although by granting the
petition, the result is the same in that a corresponding
change in the entry is also required to reflect the change in
name. In this regard, [appellee] Capote complied with the
requirement for an adversarial proceeding by posting in a
newspaper of general circulation notice of the filing of
the petition. The lower court also furnished the OSG a
copy thereof. Despite the notice, no one came forward to
oppose the petition including the OSG. The fact that no
one opposed the petition did not deprive the court of its
jurisdiction to hear the same nor does it make the
proceeding less adversarial in nature. The lower court is
still expected to exercise its judgment to determine
whether the petition is meritorious or not and not merely
accept as true the arguments propounded. Considering
that the OSG neither opposed the petition nor the motion
to present its evidence ex parte when it had the
opportunity to do so, it cannot now complain that the

12

proceedings in the lower court were not adversarial

23
enough. (emphasis supplied)
A proceeding is adversarial where the party seeking relief
has given legal warning to the other party and afforded
24
the latter an opportunity to contest it. Respondent gave
notice of the petition through publication as required by
25
the rules. With this, all interested parties were deemed
notified and the whole world considered bound by the
judgment therein. In addition, the trial court gave due
notice to the OSG by serving a copy of the petition on it.
Thus, all the requirements to make a proceeding
adversarial were satisfied when all interested parties,
including petitioner as represented by the OSG, were
afforded the opportunity to contest the petition.
REMO v. SECRETARY OF FOREIGN AFFAIRS
Facts:
Issue: W/N petitioner, who originally used her husbands
surname in her expired passport, can revert to the use of
her maiden name in the replacement passport, despite the
subsistence of her marriage.
Held: The petition lacks merit.
Title XIII of the Civil Code governs the use of
surnames. In the case of a married woman, Article 370 of
the Civil Code provides:
ART. 370. A married woman may use:
(1)
HER MAIDEN FIRST NAME AND
SURNAME AND ADD HER HUSBANDS
SURNAME, OR
(2)
HER MAIDEN FIRST NAME AND
HER HUSBAND'S SURNAME,
OR
(3) HER HUSBANDS FULL NAME, BUT
PREFIXING A WORD INDICATING THAT
SHE IS HIS WIFE, SUCH AS MRS.
We agree with petitioner that the use of the word
may in the above provision indicates that the use of the
husbands surname by the wife is permissive rather than
obligatory. This has been settled in the case of Yasin v.
[11]
Honorable Judge Sharia District Court.
[12]

In Yasin, petitioner therein filed with the Sharia

District Court a Petition to resume the use of maiden
name in view of the dissolution of her marriage by
divorce under the Code of Muslim Personal Laws of the
Philippines, and after marriage of her former husband to

PERSONS & FAMILY RELATIONS (Case Digests)

another woman. In ruling in favor of petitioner therein,
the Court explained that:
When a woman marries a man,
she need not apply and/or seek
judicial authority to use her
husbands name by prefixing the
word Mrs. before her husbands full
name or by adding her husbands
surname to her maiden first name.
The law grants her such right (Art.
370, Civil Code). Similarly, when the
marriage ties or vinculum no longer
exists as in the case of death of the
husband or divorce as authorized by
the Muslim Code, the widow or
divorcee need not seek judicial
confirmation of the change in her civil
status in order to revert to her
maiden name as use of her former
husbands is optional and not
obligatory for her (Tolentino, Civil
Code, p. 725, 1983 ed.; Art. 373, Civil
Code). When petitioner married her
husband, she did not change her but
only her civil status. Neither was she
required to secure judicial authority
to use the surname of her husband
after the marriage as no law requires
it. (Emphasis supplied)

Clearly, a married woman has an option, but not a

duty, to use the surname of the husband in any of the
[13]
ways provided by Article 370 of the Civil Code.
She is
therefore allowed to use not only any of the three names
provided in Article 370, but also her maiden name upon
marriage. She is not prohibited from continuously using
her maiden name once she is married because when a
woman marries, she does not change her name but only
her civil status. Further, this interpretation is in
consonance with the principle that surnames indicate
[14]
descent.
In the present case, petitioner, whose marriage is still
subsisting and who opted to use her husbands surname in
her old passport, requested to resume her maiden name
in the replacement passport arguing that no law prohibits
her from using her maiden name. Petitioner cites Yasin as
the applicable precedent. However, Yasin is not squarely
in point with this case. Unlike in Yasin, which involved a
Muslim divorcee whose former husband is already
married to another woman, petitioners marriage
remains subsisting. Another point, Yasin did not involve a
request to resume ones maiden name in a replacement

13

passport, but a petition to resume ones maiden name in

view of the dissolution of ones marriage.

The law governing passport issuance is RA 8239 and

the applicable provision in this case is Section 5(d),
which states:
Sec. 5. Requirements for the
Issuance of Passport. No passport
shall be issued to an applicant unless
the Secretary or his duly authorized
representative is satisfied that the
applicant is a Filipino citizen who has
complied
with
the
following
requirements: x x x
(D) IN CASE OF A WOMAN
WHO IS MARRIED,
SEPARATED, DIVORCED
OR
WIDOWED
OR
WHOSE MARRIAGE HAS
BEEN ANNULLED OR
DECLARED BY COURT AS
VOID, A COPY OF THE
CERTIFICATE
OF
MARRIAGE,
COURT
DECREE
OF
SEPARATION, DIVORCE
OR ANNULMENT OR
CERTIFICATE OF DEATH
OF THE DECEASED
SPOUSE DULY ISSUED
AND AUTHENTICATED
BY THE OFFICE OF THE
CIVIL
REGISTRAR
GENERAL: PROVIDED,
THAT IN CASE OF A
DIVORCE
DECREE,
ANNULMENT
OR
DECLARATION
OF
MARRIAGE AS VOID,
THE
WOMAN
APPLICANT
MAY
REVERT TO THE USE OF
HER MAIDEN NAME:
PROVIDED, FURTHER,
THAT SUCH DIVORCE IS
RECOGNIZED
UNDER
EXISTING LAWS OF THE
PHILIPPINES; X X X
(EMPHASIS SUPPLIED)
The Office of the Solicitor General (OSG), on behalf of
the Secretary of Foreign Affairs, argues that the
highlighted proviso in Section 5(d) of RA 8239 limits the

PERSONS & FAMILY RELATIONS (Case Digests)

instances when a married woman may be allowed to
revert to the use of her maiden name in her
passport. These instances are death of husband, divorce
decree,
annulment
or
nullity
of
marriage.
Significantly, Section 1, Article 12 of the Implementing
Rules and Regulations of RA 8239 provides:
The passport can be amended only in
the following cases:
A) AMENDMENT
MARRIAGE;

OF

WOMANS

NAME

DUE

TO

B) AMENDMENT OF WOMANS NAME DUE TO DEATH OF

SPOUSE, ANNULMENT OF MARRIAGE OR DIVORCE
INITIATED BY A FOREIGN SPOUSE; OR
C) CHANGE OF SURNAME OF A CHILD WHO IS
LEGITIMATED BY VIRTUE OF A SUBSEQUENT
MARRIAGE OF HIS PARENTS.
Since petitioners marriage to her husband subsists,
placing her case outside of the purview of Section 5(d) of
RA 8239 (as to the instances when a married woman may
revert to the use of her maiden name), she may not
resume her maiden name in the replacement
[15]
This prohibition, according to petitioner,
passport.
conflicts with and, thus, operates as an implied repeal of
Article 370 of the Civil Code.
PETITIONER IS MISTAKEN. THE CONFLICT BETWEEN
ARTICLE 370 OF THE CIVIL CODE AND SECTION 5(D) OF RA
8239 IS MORE IMAGINED THAN REAL. RA 8239,
INCLUDING ITS IMPLEMENTING RULES AND REGULATIONS,
DOES NOT PROHIBIT A MARRIED WOMAN FROM USING
HER MAIDEN NAME IN HER PASSPORT. IN FACT, IN
RECOGNITION OF THIS RIGHT, THE DFA ALLOWS A
MARRIED WOMAN WHO APPLIES FOR A PASSPORT FOR
THE FIRST TIME TO USE HER MAIDEN NAME. SUCH AN
APPLICANT IS NOT REQUIRED TO ADOPT HER HUSBAND'S
[16]
SURNAME.
In the case of renewal of passport, a married woman
may either adopt her husbands surname or continuously
use her maiden name. If she chooses to adopt her
husbands surname in her new passport, the DFA
additionally requires the submission of an authenticated
copy of the marriage certificate. Otherwise, if she prefers
to continue using her maiden name, she may still do
so. The DFA will not prohibit her from continuously using
[17]
her maiden name.

HOWEVER, ONCE A MARRIED WOMAN OPTED TO

ADOPT HER HUSBANDS SURNAME IN HER PASSPORT,
SHE MAY NOT REVERT TO THE USE OF HER MAIDEN
NAME, EXCEPT IN THE CASES ENUMERATED IN SECTION

14

5(D) OF RA 8239. THESE INSTANCES ARE: (1) DEATH OF

HUSBAND, (2) DIVORCE, (3) ANNULMENT, OR (4) NULLITY
OF MARRIAGE. SINCE PETITIONERS MARRIAGE TO HER
HUSBAND SUBSISTS, SHE MAY NOT RESUME HER
MAIDEN NAME IN THE REPLACEMENT PASSPORT.
OTHERWISE STATED, A MARRIED WOMAN'S REVERSION
TO THE USE OF HER MAIDEN NAME MUST BE BASED
ONLY ON THE SEVERANCE OF THE MARRIAGE.
EVEN ASSUMING RA 8239 CONFLICTS WITH THE CIVIL
CODE, THE PROVISIONS OF RA 8239 WHICH IS A SPECIAL
LAW
SPECIFICALLY
DEALING
WITH
PASSPORT
ISSUANCE MUST PREVAIL OVER THE PROVISIONS OF
TITLE XIII OF THE CIVIL CODE WHICH IS THE GENERAL
LAW ON THE USE OF SURNAMES. A BASIC TENET
INSTATUTORY CONSTRUCTION IS THAT A SPECIAL LAW
[18]
PREVAILS OVER A GENERAL LAW, THUS:
[I]t is a familiar rule of statutory
construction that to the extent of
any necessary
repugnancy
between a general and a special
law or provision, the latter will
control the former without
regard to the respective dates of
[19]
passage.
Moreover, petitioners theory of implied repeal must
fail. Well-entrenched is the rule that an implied repeal is
disfavored. T he apparently conflicting provisions of a law
or two laws should be harmonized as much as possible, so
[20]
that each shall be effective. For a law to operate to
repeal another law, the two laws must actually be
inconsistent. The former must be so repugnant as to be
[21]
irreconcilable with the latter act. This petitioner failed
to establish.
The Court notes that petitioner would not have
encountered any problems in the replacement passport
had she opted to continuously and consistently use her
maiden name from the moment she was married and from
the time she first applied for a Philippine passport.
However, petitioner consciously chose to use her
husbands surname before, in her previous passport
application, and now desires to resume her maiden
name. If we allow petitioners present request, definitely
nothing prevents her in the future from requesting to
revert to the use of her husbands surname. Such
unjustified changes in one's name and identity in a
passport, which is considered superior to all other official
[22]
documents, cannot be countenanced. Otherwise,
undue confusion and inconsistency in the records of
passport holders will arise. Thus, for passport issuance
purposes, a married woman, such as petitioner, whose
marriage subsists, may not change her family name at
will.

PERSONS & FAMILY RELATIONS (Case Digests)

THE ACQUISITION OF A PHILIPPINE PASSPORT IS A

PRIVILEGE. THE LAW RECOGNIZES THE PASSPORT
APPLICANTS CONSTITUTIONAL RIGHT TO TRAVEL.
HOWEVER, THE STATE IS ALSO MANDATED TO PROTECT
AND MAINTAIN THE INTEGRITY AND CREDIBILITY OF THE
PASSPORT AND TRAVEL DOCUMENTS PROCEEDING FROM
[23]
IT AS A PHILIPPINE PASSPORT REMAINS AT ALL TIMES
THE PROPERTY OF THE GOVERNMENT. THE HOLDER IS
MERELY A POSSESSOR OF THE PASSPORT AS LONG AS IT IS
VALID AND THE SAME MAY NOT BE SURRENDERED TO ANY
PERSON OR ENTITY OTHER THAN THE GOVERNMENT OR
[24]
ITS REPRESENTATIVE.
As the OSG correctly pointed out:
[T]he issuance of passports is
impressed with public interest. A
passport is an official document of
identity and nationality issued to a
person intending to travel or sojourn
in foreign countries. It is issued by
the Philippine government to its
citizens
requesting
other
governments to allow its holder to
pass safely and freely, and in case of
need, to give him/her aid and
protection. x x x
Viewed in the light of the foregoing, it is within
respondents competence to regulate any amendments
intended to be made therein, including the denial of
unreasonable and whimsical requests for amendments
such as in the instant case.
SILVERIO v. REPUBLIC3

3 When God created man, He made him in the likeness of

God; He created them male and female. (Genesis 5:1-2)
Amihan gazed upon the bamboo reed planted by Bathala
and she heard voices coming from inside the bamboo. "Oh
North Wind! North Wind! Please let us out!," the voices
said. She pecked the reed once, then twice. All of a sudden,
the bamboo cracked and slit open. Out came two human
beings; one was a male and the other was a female.
Amihan named the man "Malakas" (Strong) and the
woman "Maganda" (Beautiful). (The Legend of Malakas
and Maganda)
When is a man a man and when is a woman a woman? In
particular, does the law recognize the changes made by a
physician using scalpel, drugs and counseling with regard

15

Facts: Rommel Silverio wants to change his name and sex

being a transgender who has undergone sexual
reassignment.
Issue: W/N Silverios petition should be granted.
Held: No.
A Persons First Name Cannot Be Changed On the Ground
of Sex Reassignment
Petitioner invoked his sex reassignment as the ground for
his petition for change of name and sex. As found by the
trial court:
Petitioner filed the present petition not to evade
any law or judgment or any infraction thereof or
for any unlawful motive but solely for the
purpose of making his birth records compatible
with his present sex. (emphasis supplied)
Petitioner believes that after having acquired the physical
features of a female, he became entitled to the civil
registry changes sought. We disagree.
The State has an interest in the names borne by
11
individuals and entities for purposes of identification. A
12
change of name is a privilege, not a right. Petitions for
13
change of name are controlled by statutes. In this
connection, Article 376 of the Civil Code provides:
ART. 376. No person can change his name or
surname without judicial authority.
This Civil Code provision was amended by RA 9048
(Clerical Error Law). In particular, Section 1 of RA 9048
provides:
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

to a persons sex? May a person successfully petition for a

change of name and sex appearing in the birth certificate
to reflect the result of a sex reassignment surgery?

PERSONS & FAMILY RELATIONS (Case Digests)

accordance with the provisions of this Act and its
implementing rules and regulations.

16

20

and official name. In this case, he failed to show, or even

allege, any prejudice that he might suffer as a result of
using his true and official name.

14

RA 9048 now governs the change of first name. It vests

the power and authority to entertain petitions for change
of first name to the city or municipal civil registrar or
consul general concerned. Under the law, therefore,
jurisdiction over applications for change of first name is
now primarily lodged with the aforementioned
administrative officers. The intent and effect of the law is
to exclude the change of first name from the coverage of
Rules 103 (Change of Name) and 108 (Cancellation or
Correction of Entries in the Civil Registry) of the Rules of
Court, until and unless an administrative petition for
15
change of name is first filed and subsequently denied. It
16
17
likewise lays down the corresponding venue, form and
procedure. In sum, the remedy and the proceedings
regulating change of first name are primarily
administrative in nature, not judicial.
RA 9048 likewise provides the grounds for which change of
first name may be allowed:
SECTION 4. Grounds for Change of First Name or
Nickname. The petition for change of first
name or nickname may be allowed in any of the
following cases:
(1) The petitioner finds the first name or
nickname to be ridiculous, tainted with dishonor
or extremely difficult to write or pronounce;
(2) The new first name or nickname has been
habitually and continuously used by the
petitioner and he has been publicly known by
that first name or nickname in the community;
or
(3) The change will avoid confusion.
Petitioners basis in praying for the change of his first
name was his sex reassignment. He intended to make his
first name compatible with the sex he thought he
transformed himself into through surgery. However, a
change of name does not alter ones legal capacity or civil
18
status. RA 9048 does not sanction a change of first name
on the ground of sex reassignment. Rather than avoiding
confusion, changing petitioners first name for his declared
purpose may only create grave complications in the civil
registry and the public interest.
Before a person can legally change his given name, he
must present proper or reasonable cause or any
19
compelling reason justifying such change. In addition, he
must show that he will be prejudiced by the use of his true

In sum, the petition in the trial court in so far as it prayed

for the change of petitioners first name was not within
that courts primary jurisdiction as the petition should
have been filed with the local civil registrar concerned,
assuming it could be legally done. It was an improper
remedy because the proper remedy was administrative,
that is, that provided under RA 9048. It was also filed in
the wrong venue as the proper venue was in the Office of
the Civil Registrar of Manila where his birth certificate is
kept. More importantly, it had no merit since the use of his
true and official name does not prejudice him at all. For all
these reasons, the Court of Appeals correctly dismissed
petitioners petition in so far as the change of his first
name was concerned.
No Law Allows The Change of Entry In The Birth
Certificate As To Sex On the Ground of Sex Reassignment
The determination of a persons sex appearing in his birth
certificate is a legal issue and the court must look to the
21
statutes. In this connection, Article 412 of the Civil Code
provides:
ART. 412. No entry in the civil register shall be
changed or corrected without a judicial order.
Together with Article 376 of the Civil Code, this provision
was amended by RA 9048 in so far as clerical or
typographical errors are involved. The correction or
change of such matters can now be made through
administrative proceedings and without the need for a
judicial order. In effect, RA 9048 removed from the ambit
of Rule 108 of the Rules of Court the correction of such
22
errors. Rule 108 now applies only to substantial changes
23
and corrections in entries in the civil register.
Section 2(c) of RA 9048 defines what a "clerical or
typographical error" is:
SECTION 2. Definition of Terms. As used in this
Act, the following terms shall mean:
xxx

xxx

xxx

(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

PERSONS & FAMILY RELATIONS (Case Digests)

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
ofnationality, age, status or sex of the
petitioner. (emphasis supplied)
Under RA 9048, a correction in the civil registry involving
the change of sex is not a mere clerical or typographical
error. It is a substantial change for which the applicable
procedure is Rule 108 of the Rules of Court.
The entries envisaged in Article 412 of the Civil Code and
correctable under Rule 108 of the Rules of Court are those
24
provided in Articles 407 and 408 of the Civil Code:
ART. 407. Acts, events and judicial decrees
concerning the civil status of persons shall be
recorded in the civil register.
ART. 408. The following shall be entered in the
civil register:
(1) Births; (2) marriages; (3) deaths; (4) legal
separations; (5) annulments of marriage; (6)
judgments declaring marriages void from the
beginning; (7) legitimations; (8) adoptions; (9)
acknowledgments of natural children; (10)
naturalization; (11) loss, or (12) recovery of
citizenship; (13) civil interdiction; (14) judicial
determination of filiation; (15) voluntary
emancipation of a minor; and (16) changes of
name.
The acts, events or factual errors contemplated under
Article 407 of the Civil Code include even those that occur
25
after birth. However, no reasonable interpretation of the
provision can justify the conclusion that it covers the
correction on the ground of sex reassignment.
To correct simply means "to make or set aright; to remove
the faults or error from" while to change means "to
replace something with something else of the same kind
26
or with something that serves as a substitute." The birth
certificate of petitioner contained no error. All entries
therein, including those corresponding to his first name
and sex, were all correct. No correction is necessary.
Article 407 of the Civil Code authorizes the entry in the
civil registry of certain acts (such as legitimations,
acknowledgments
of
illegitimate
children
and
naturalization), events (such
as
births,
marriages,

17

naturalization and deaths) and judicial decrees (such as

legal separations, annulments of marriage, declarations of
nullity of marriages, adoptions, naturalization, loss or
recovery of citizenship, civil interdiction, judicial
determination of filiation and changes of name). These
acts, events and judicial decrees produce legal
consequences that touch upon the legal capacity, status
and nationality of a person. Their effects are expressly
sanctioned by the laws. In contrast, sex reassignment is
not among those acts or events mentioned in Article 407.
Neither is it recognized nor even mentioned by any law,
expressly or impliedly.
"Status" refers to the circumstances affecting the legal
situation (that is, the sum total of capacities and
incapacities) of a person in view of his age, nationality and
27
his family membership.
The status of a person in law includes all his
personal qualities and relations, more or less
permanent in nature, not ordinarily terminable
at his own will, such as his being legitimate or
illegitimate, or his being married or not. The
comprehensive term status include such
matters as the beginning and end of legal
personality, capacity to have rights in general,
family relations, and its various aspects, such as
birth, legitimation, adoption, emancipation,
marriage, divorce, and sometimes even
28
succession. (emphasis supplied)
A persons sex is an essential factor in marriage and family
relations. It is a part of a persons legal capacity and civil
status. In this connection, Article 413 of the Civil Code
provides:
ART. 413. All other matters pertaining to the
registration of civil status shall be governed by
special laws.
But there is no such special law in the Philippines
governing sex reassignment and its effects. This is fatal to
petitioners cause.
Moreover, Section 5 of Act 3753 (the Civil Register Law)
provides:
SEC. 5. Registration and certification of births.
The declaration of the physician or midwife in
attendance at the birth or, in default thereof, the
declaration of either parent of the newborn
child, shall be sufficient for the registration of a
birth in the civil register. Such declaration shall
be exempt from documentary stamp tax and
shall be sent to the local civil registrar not later

PERSONS & FAMILY RELATIONS (Case Digests)

than thirty days after the birth, by the physician
or midwife in attendance at the birth or by
either parent of the newborn child.
In such declaration, the person above mentioned
shall certify to the following facts: (a) date and
hour of birth; (b) sex and nationality of infant;
(c) names, citizenship and religion of parents or,
in case the father is not known, of the mother
alone; (d) civil status of parents; (e) place where
the infant was born; and (f) such other data as
may be required in the regulations to be issued.
xxx

xxx

xxx (emphasis supplied)

Under the Civil Register Law, a birth certificate is a

historical record of the facts as they existed at the time of
29
birth. Thus, the sex of a person is determined at
birth, visually done by the birth attendant (the physician or
midwife) by examining the genitals of the infant.
Considering that there is no law legally recognizing sex
reassignment, the determination of a persons sex made at
30
the time of his or her birth, if not attended by error, is
31
immutable.
When words are not defined in a statute they are to be
given their common and ordinary meaning in the absence
of a contrary legislative intent. The words "sex," "male"
and "female" as used in the Civil Register Law and laws
concerning the civil registry (and even all other laws)
should therefore be understood in their common and
ordinary usage, there being no legislative intent to the
contrary. In this connection, sex is defined as "the sum of
peculiarities of structure and function that distinguish a
32
male from a female" or "the distinction between male
33
and female." Female is "the sex that produces ova or
34
bears young" and male is "the sex that has organs to
35
produce spermatozoa for fertilizing ova." Thus, the
words "male" and "female" in everyday understanding do
not include persons who have undergone sex
reassignment. Furthermore, "words that are employed in a
statute which had at the time a well-known meaning are
presumed to have been used in that sense unless the
36
context compels to the contrary." Since the statutory
language of the Civil Register Law was enacted in the early
1900s and remains unchanged, it cannot be argued that
the term "sex" as used then is something alterable through
surgery or something that allows a post-operative male-tofemale transsexual to be included in the category
"female."
For these reasons, while petitioner may have succeeded in
altering his body and appearance through the intervention
of modern surgery, no law authorizes the change of entry
as to sex in the civil registry for that reason. Thus, there is

18

no legal basis for his petition for the correction or change

of the entries in his birth certificate.
Neither May Entries in the Birth Certificate As to First
Name or Sex Be Changed on the Ground of Equity
The trial court opined that its grant of the petition was in
consonance with the principles of justice and equity. It
believed that allowing the petition would cause no harm,
injury or prejudice to anyone. This is wrong.
The changes sought by petitioner will have serious and
wide-ranging legal and public policy consequences. First,
even the trial court itself found that the petition was but
petitioners first step towards his eventual marriage to his
male fianc. However, marriage, one of the most sacred
social institutions, is a special contract of permanent
37
union between a man and a woman. One of its essential
requisites is the legal capacity of the contracting parties
38
who must be a male and a female. To grant the changes
sought by petitioner will substantially reconfigure and
greatly alter the laws on marriage and family relations. It
will allow the union of a man with another man who has
undergone sex reassignment (a male-to-female postoperative transsexual). Second, there are various laws
which apply particularly to women such as the provisions
39
of the Labor Code on employment of women, certain
40
felonies under the Revised Penal Code and the
presumption of survivorship in case of calamities under
41
Rule 131 of the Rules of Court, among others. These laws
underscore the public policy in relation to women which
could be substantially affected if petitioners petition were
to be granted.
It is true that Article 9 of the Civil Code mandates that
"[n]o judge or court shall decline to render judgment by
reason of the silence, obscurity or insufficiency of the law."
However, it is not a license for courts to engage in judicial
legislation. The duty of the courts is to apply or interpret
the law, not to make or amend it.
In our system of government, it is for the legislature,
should it choose to do so, to determine what guidelines
should govern the recognition of the effects of sex
reassignment. The need for legislative guidelines becomes
particularly important in this case where the claims
asserted are statute-based.
To reiterate, the statutes define who may file petitions for
change of first name and for correction or change of
entries in the civil registry, where they may be filed, what
grounds may be invoked, what proof must be presented
and what procedures shall be observed. If the legislature
intends to confer on a person who has undergone sex
reassignment the privilege to change his name and sex to

PERSONS & FAMILY RELATIONS (Case Digests)

conform with his reassigned sex, it has to enact legislation
laying down the guidelines in turn governing the
conferment of that privilege.

19

Under Rep. Act No. 9048, a correction in the civil

registry involving the change of sex is not a mere clerical or
typographical error. It is a substantial change for which the
[19]
applicable procedure is Rule 108 of the Rules of Court.

It might be theoretically possible for this Court to write a

protocol on when a person may be recognized as having
successfully changed his sex. However, this Court has no
authority to fashion a law on that matter, or on anything
else. The Court cannot enact a law where no law exists. It
can only apply or interpret the written word of its co-equal
branch of government, Congress.

The entries envisaged in Article 412 of the Civil

Code and correctable under Rule 108 of the Rules of Court
are those provided in Articles 407 and 408 of the Civil
Code:

Petitioner pleads that "[t]he unfortunates are also entitled

to a life of happiness, contentment and [the] realization of
their dreams." No argument about that. The Court
recognizes that there are people whose preferences and
orientation do not fit neatly into the commonly recognized
parameters of social convention and that, at least for
them, life is indeed an ordeal. However, the remedies
petitioner seeks involve questions of public policy to be
addressed solely by the legislature, not by the courts.

ART. 408. The following shall be

entered in the civil register:

REPUBLIC v. CAGANDAHAN
Facts: Petitioner has a CAH, which means that he has 2
genital organs. He wants to change his name and sex.
Issue: W/N the trial court erred in ordering the correction
of entries in the birth certificate of respondent to change
her sex or gender, from female to male, on the ground of
her medical condition known as CAH, and her name from
Jennifer to Jeff, under Rules 103 and 108 of the Rules
of Court.
Held: The determination of a persons sex appearing in his
birth certificate is a legal issue and the court must look to
the statutes. In this connection, Article 412 of the Civil
Code provides:
ART. 412. No entry in a civil register
shall be changed or corrected without
a judicial order.
[16]

Together with Article 376 of the Civil Code,

[17]
this provision was amended by Republic Act No. 9048 in
so far asclerical or typographical errors are involved. The
correction or change of such matters can now be made
through administrative proceedings and without the need
for a judicial order. In effect, Rep. Act No. 9048 removed
from the ambit of Rule 108 of the Rules of Court the
correction of such errors. Rule 108 now applies only to
substantial changes and corrections in entries in the civil
[18]
register.

ART. 407. Acts, events and judicial

decrees concerning the civil status of
persons shall be recorded in the civil
register.

(1) Births; (2) marriages; (3) deaths; (4)

legal separations; (5) annulments of
marriage; (6) judgments declaring
marriages void from the beginning; (7)
legitimations; (8) adoptions; (9)
acknowledgments of natural children;
(10) naturalization; (11) loss, or (12)
recovery of citizenship; (13) civil
interdiction;
(14)
judicial
determination of filiation; (15)
voluntary emancipation of a minor;
and (16) changes of name.

The acts, events or factual errors contemplated

under Article 407 of the Civil Code include even those that
[20]
occur after birth.
Respondent undisputedly has CAH. This
condition causes the early or inappropriate appearance
of male characteristics. A person, like respondent, with
this condition produces too much androgen, a male
hormone. A newborn who has XX chromosomes coupled
with CAH usually has a (1) swollen clitoris with the urethral
opening at the base, an ambiguous genitalia often
appearing more male than female; (2) normal internal
structures of the female reproductive tract such as the
ovaries, uterus and fallopian tubes; as the child grows
older, some features start to appear male, such as
deepening of the voice, facial hair, and failure to
menstruate at puberty. About 1 in 10,000 to 18,000
children are born with CAH.
[21]

CAH is one of many conditions that

involve intersex anatomy. During the twentieth century,
medicine adopted the term intersexuality to apply to
human beings who cannot be classified as either male or

PERSONS & FAMILY RELATIONS (Case Digests)

[22]

female.
The term is now of widespread use. According
to Wikipedia, intersexuality is the state of a living thing of
a gonochoristic species whose sex chromosomes, genitalia,
and/or secondary sex characteristics are determined to be
neither exclusively male nor female. An organism
with intersexmay have biological characteristics of both
male and female sexes.
Intersex individuals are treated in different ways
by
different
cultures. In
most
societies, intersex individuals have been expected to
[23]
conform to either a male or female gender role.
Since
the rise of modern medical science in Western societies,
some intersex people with ambiguous external genitalia
have had their genitalia surgically modified to resemble
[24]
More commonly,
either male or female genitals.
an intersex individual is considered as suffering from a
disorder which is almost always recommended to be
treated, whether by surgery and/or by taking lifetime
medication in order to mold the individual as neatly as
possible into the category of either male or female.
In deciding this case, we consider the
compassionate calls for recognition of the various degrees
of intersex as variations which should not be subject to
outright denial. It has been suggested that there is some
middle ground between the sexes, a no-mans land for
those individuals who are neither truly male nor truly
[25]
female.
The current state of Philippine statutes
apparently compels that a person be classified either as a
male or as a female, but this Court is not controlled by
mere appearances when nature itself fundamentally
negates such rigid classification.
In the instant case, if we determine respondent
to be a female, then there is no basis for a change in the
birth certificate entry for gender. But if we determine,
based on medical testimony and scientific development
showing the respondent to be other than female, then
a change in the
subjects birth certificate entry is in order.
Biologically, nature endowed respondent with a
mixed (neither consistently and categorically female nor
consistently
and
categorically
male)
composition. Respondent
has
female
(XX)
chromosomes. However, respondents body system
naturally produces high levels of male hormones
(androgen). As a result, respondent has ambiguous
genitalia and the phenotypic features of a male.

20

Ultimately, we are of the view that where the

person is biologically or naturally intersex the determining
factor in his gender classification would be what the
individual, like respondent, having reached the age of
majority, with good reason thinks of his/her
sex. Respondent here thinks of himself as a male and
considering that his body produces high levels of male
hormones (androgen) there is preponderant biological
support for considering him as being male. Sexual
development in cases of intersex persons makes the
gender classification at birth inconclusive. It is at maturity
that the gender of such persons, like respondent, is fixed.
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
[26]
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
respondents 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 ones 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 respondent to 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 intersexanatomy. 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
[27]
respondent is an incompetent and 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 respondents position and his personal
judgment of being a male.
In so ruling we do no more than give respect to
(1) the diversity of nature; and (2) how an individual deals
with what nature has handed out. In other words, we
respect respondents congenital condition and his mature
decision to be a male. Life is already difficult for the
ordinary person. We cannot but respect how respondent

PERSONS & FAMILY RELATIONS (Case Digests)

deals with his unordinary state and thus help make his life
easier, considering the unique circumstances in this case.
As for respondents change of name under Rule
103, this Court has held that a change of name is not a
matter of right but of judicial discretion, to be exercised in
the light of the reasons adduced and the consequences
[28]
that will follow.
The trial courts grant of respondents
change of name from Jennifer to Jeff implies a change of a
feminine name to a masculine name. Considering the
consequence that respondents change of name merely
recognizes his preferred gender, we find merit in
respondents change of name. Such a change will conform
with the change of the entry in his birth certificate from
female to male.
CORPUZ v. STO. TOMAS
Facts: Gerbert Corpuz (Gerbert) was a former Filipino
citizen who acquired Canadian citizenship through
naturalization. He later married a Filipina, Daisylyn Sto.
Tomas (Daisy). Gerbert left for Canada soon after the
wedding because of his work. He returned after 4 months
to surprise Daisy, but discovered that she was having an
affair with another man. Hurt and disappointed, Gerbert
returned to Canada and filed a petition for divorce. The
Superior Court of Justice in Ontario, Canada granted his
petition for divorce.
2 years after the divorce, Gerbert found another Filipina to
love. Gerbert went to the Civil Registry Office and
registered the Canadian divorce decree on his and Daisys
marriage certificate. Despite the registration of the divorce
decree, an official of the National Statistics Office (NSO)
informed him that the marriage between him and Daisy
still subsists under Philippine law. To be enforceable, the
foreign divorce decree must first be judicially recognized
by a competent Philippine court, pursuant to a NSO
Circular.
Gerbert filed a petition for judicial recognition of foreign
divorce and/or declaration of marriage as dissolved with
the RTC. Daisy did not file any responsive pleading and
offered no opposition to the petition. In fact, Daisy alleged
her desire to file a similar case but was prevented by
financial constrains. She, thus, requested that she be
considered as a party-in-interest with a similar prayer to
Gerberts.
The RTC denied Gerberts petition. The RTC concluded that
Gerbert was NOT THE PROPER PARTY to institute the
action for judicial recognition of the foreign divorce decree
as he is a NATURALIZED CANADIAN CITIZEN. It ruled that

21

ONLY THE FILIPINO spouse can avail of the remedy, under

Art. 26, 2 of the Family Code.4
Issue:
Held: As a matter of "housekeeping" concern, we note
that the Pasig City Civil Registry Office has already
recorded the divorce decree on Gerbert and Daisylyns
marriage certificate based on the mere presentation of the
34
decree. We consider the recording to be legally
improper; hence, the need to draw attention of the bench
and the bar to what had been done.
Article 407 of the Civil Code states that "[a]cts, events and
judicial decrees concerning the civil status of persons shall
be recorded in the civil register." The law requires the
entry in the civil registry of judicial decrees that produce
legal consequences touching upon a persons legal
capacity and status, i.e., those affecting "all his personal
qualities and relations, more or less permanent in nature,
not ordinarily terminable at his own will, such as his being
35
legitimate or illegitimate, or his being married or not."
A judgment of divorce is a judicial decree, although a
foreign one, affecting a persons legal capacity and status
that must be recorded. In fact, Act No. 3753 or the Law on
Registry of Civil Status specifically requires the registration
of divorce decrees in the civil registry:
Sec. 1. Civil Register. A civil register is established for
recording the civil status of persons, in which shall be
entered:
(a) births;
(b) deaths;
(c) marriages;
(d) annulments of marriages;

4 Art. 26. All marriages solemnized outside the Philippines, in

accordance with the laws in force in the country where they
were solemnized, and valid there as such, shall also be valid in
this country, except those prohibited under Articles 35 (1), (4),
(5) and (6), 3637 and 38. (17a)
Where a marriage between a Filipino citizen and a foreigner is
validly celebrated and a divorce is thereafter validly obtained
abroad by the alien spouse capacitating him or her to
remarry, the Filipino spouse shall have capacity to remarry
under Philippine law. (As amended by Executive Order 227)

PERSONS & FAMILY RELATIONS (Case Digests)

(e) divorces;
(f) legitimations;
(g) adoptions;
(h) acknowledgment of natural children;
(i) naturalization; and
(j) changes of name.
xxxx
Sec. 4. Civil Register Books. The local registrars shall
keep and preserve in their offices the following books, in
which they shall, respectively make the proper entries
concerning the civil status of persons:
(1) Birth and death register;
(2) Marriage register, in which shall be entered
not only the marriages solemnized but also
divorces and dissolved marriages.
(3) Legitimation, acknowledgment, adoption,
change of name and naturalization register.
But while the law requires the entry of the divorce decree
in the civil registry, the law and the submission of the
decree by themselves do not ipso facto authorize the
decrees registration. The law should be read in relation
with the requirement of a judicial recognition of the
foreign judgment before it can be given res judicata effect.
In the context of the present case, no judicial order as yet
exists recognizing the foreign divorce decree. Thus, the
Pasig City Civil Registry Office acted totally out of turn and
without authority of law when it annotated the Canadian
divorce decree on Gerbert and Daisylyns marriage
certificate, on the strength alone of the foreign decree
presented by Gerbert.
Evidently, the Pasig City Civil Registry Office was aware of
the requirement of a court recognition, as it cited NSO
36
Circular No. 4, series of 1982, and Department of Justice
37
Opinion No. 181, series of 1982 both of which required
a final order from a competent Philippine court before a
foreign judgment, dissolving a marriage, can be registered
in the civil registry, but it, nonetheless, allowed the
registration of the decree. For being contrary to law, the
registration of the foreign divorce decree without the
requisite judicial recognition is patently void and cannot
produce any legal effect.1avvphi1

22

Another point we wish to draw attention to is that the

recognition that the RTC may extend to the Canadian
divorce decree does not, by itself, authorize the
cancellation of the entry in the civil registry. A petition for
recognition of a foreign judgment is not the proper
proceeding, contemplated under the Rules of Court, for
the cancellation of entries in the civil registry.
Article 412 of the Civil Code declares that "no entry in a
civil register shall be changed or corrected, without judicial
order." The Rules of Court supplements Article 412 of the
Civil Code by specifically providing for a special remedial
proceeding by which entries in the civil registry may be
judicially cancelled or corrected. Rule 108 of the Rules of
Court sets in detail the jurisdictional and procedural
requirements that must be complied with before a
judgment, authorizing the cancellation or correction, may
be annotated in the civil registry. It also requires, among
others, that the verified petition must be filed with the
RTC of the province where the corresponding civil registry
38
is located; that the civil registrar and all persons who
have or claim any interest must be made parties to the
39
proceedings; and that the time and place for hearing
must be published in a newspaper of general
40
circulation. As these basic jurisdictional requirements
have not been met in the present case, we cannot
consider the petition Gerbert filed with the RTC as one
filed under Rule 108 of the Rules of Court.
We hasten to point out, however, that this ruling should
not be construed as requiring two separate proceedings
for the registration of a foreign divorce decree in the civil
registry one for recognition of the foreign decree and
another specifically for cancellation of the entry under
Rule 108 of the Rules of Court. The recognition of the
foreign divorce decree may be made in a Rule 108
proceeding itself, as the object of special proceedings
(such as that in Rule 108 of the Rules of Court) is precisely
to establish the status or right of a party or a particular
fact. Moreover, Rule 108 of the Rules of Court can serve as
41
the appropriate adversarial proceeding by which the
applicability of the foreign judgment can be measured and
tested in terms of jurisdictional infirmities, want of notice
to the party, collusion, fraud, or clear mistake of law or
fact.

IWASAWA v. GANGAN
Facts: Iawasawa filed the instant case after he discovered
that his wife had a previous marriage. He presented public
documents to substantiate his petition.
RTC ruled that while petitioner offered the certificate of
marriage of private respondent to Arambulo, it was only
petitioner who testified about said marriage. The RTC

PERSONS & FAMILY RELATIONS (Case Digests)

ruled that petitioners testimony is unreliable because he
has no personal knowledge of private respondents prior
marriage nor of Arambulos death which makes him a
complete stranger to the marriage certificate between
private respondent and Arambulo and the latters death
certificate. It further ruled that petitioners testimony
about the NSO certification is likewise unreliable since he
is a stranger to the preparation of said document.
Issue: W/N the testimony of the NSO records custodian
certifying the authenticity and due execution of the public
documents issued by said office was necessary before they
could be accorded evidentiary weight.
Held: We grant the petition.
There is no question that the documentary evidence
submitted
by
petitioner
are
all
public
documents.1wphi1As provided in the Civil Code:
ART. 410. The books making up the civil register and all
documents relating thereto shall be considered public
documents and shall be prima facie evidence of the facts
therein contained.
As public documents, they are admissible in evidence even
without further proof of their due execution and
15
genuineness. Thus, the RTC erred when it disregarded
said documents on the sole ground that the petitioner did
not present the records custodian of the NSO who issued
them to testify on their authenticity and due execution
since proof of authenticity and due execution was not
anymore necessary. Moreover, not only are said
documents admissible, they deserve to be given
evidentiary weight because they constitute prima facie
evidence of the facts stated therein. And in the instant
case, the facts stated therein remain unrebutted since
neither the private respondent nor the public prosecutor
presented evidence to the contrary.
This Court has consistently held that a judicial declaration
of nullity is required before a valid subsequent marriage
can be contracted; or else, what transpires is a bigamous
16
marriage, which is void from the beginning as provided in
Article 35(4) of the Family Code of the Philippines. And this
is what transpired in the instant case.
As correctly pointed out by the OSG, the documentary
exhibits taken together concretely establish the nullity of
the marriage of petitioner to private respondent on the
ground that their marriage is bigamous. The exhibits
directly prove the following facts: (1) that private
respondent married Arambulo on June 20, 1994 in the City
of Manila; (2) that private respondent contracted a second
marriage this time with petitioner on November 28, 2002

23

in Pasay City; (3) that there was no judicial declaration of

nullity of the marriage of private respondent with
Arambulo at the time she married petitioner; (3) that
Arambulo died on July 14, 2009 and that it was only on
said date that private respondents marriage with
Arambulo was deemed to have been dissolved; and (4)
that the second marriage of private respondent to
petitioner is bigamous, hence null and void, since the first
marriage was still valid and subsisting when the second
marriage was contracted.
REPUBLIC v. OLAYBAR
Facts: Petitioner sought to cancel the entry in the LCR that
she contracted marriage with a certain Korean when in
fact to the best of her knowledge, she did not contract
such marriage with the Korean.
Issue:
Held: Rule 108 of the Rules of Court provides the
procedure for cancellation or correction of entries in the
civil registry. The proceedings may either be summary or
adversary. If the correction is clerical, then the procedure
to be adopted is summary. If the rectification affects the
civil status, citizenship or nationality of a party, it is
deemed substantial, and the procedure to be adopted is
adversary. Since the promulgation of Republic v.
Valencia19 in 1986, the Court has repeatedly ruled that
"even substantial errors in a civil registry may be
corrected through a petition filed under Rule 108, with
the true facts established and the parties aggrieved by
the error availing themselves of the appropriate
adversarial proceeding."20 An appropriate adversary suit
or proceeding is one where 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 partys case,
and where the evidence has been thoroughly weighed
and considered.21
It is true that in special proceedings, formal pleadings and
a hearing may be dispensed with, and the remedy [is]
granted upon mere application or motion. However, a
special proceeding is not always summary. The procedure
laid down in Rule 108 is not a summary proceeding per
se. It requires publication of the petition; it mandates the
inclusion as parties of all persons who may claim interest
which would be affected by the cancellation or
correction; it also requires the civil registrar and any
person in interest to file their opposition, if any; and it
states that although the court may make orders
expediting the proceedings, it is after hearing that the
court shall either dismiss the petition or issue an order
granting the same. Thus, as long as the procedural

PERSONS & FAMILY RELATIONS (Case Digests)

requirements in Rule 108 are followed, it is the
appropriate adversary proceeding to effect substantial
corrections and changes in entries of the civil register.22
In this case, the entries made in the wife portion of the
certificate of marriage are admittedly the personal
circumstances of respondent. The latter, however, claims
that her signature was forged and she was not the one
who contracted marriage with the purported husband. In
other words, she claims that no such marriage was
entered into or if there was, she was not the one who
entered into such contract. It must be recalled that when
respondent tried to obtain a CENOMAR from the NSO, it
appeared that she was married to a certain Ye Son Sune.
She then sought the cancellation of entries in the wife
portion of the marriage certificate.
In filing the petition for correction of entry under Rule 108,
respondent made the Local Civil Registrar of Cebu City, as
well as her alleged husband Ye Son Sune, as partiesrespondents. It is likewise undisputed that the procedural
requirements set forth in Rule 108 were complied with.
The Office of the Solicitor General was likewise notified of
the petition which in turn authorized the Office of the City
Prosecutor to participate in the proceedings. More
importantly, trial was conducted where respondent
herself, the stenographer of the court where the alleged
marriage was conducted, as well as a document examiner,
testified. Several documents were also considered as
evidence. With the testimonies and other evidence
presented, the trial court found that the signature
appearing in the subject marriage certificate was different
from respondents signature appearing in some of her
government issued identification cards.23 The court thus
made a categorical conclusion that respondents
signature in the marriage certificate was not hers and,
therefore, was forged. Clearly, it was established that, as
she claimed in her petition, no such marriage was
celebrated.
Indeed the Court made a pronouncement in the recent
case of Minoru Fujiki v. Maria Paz Galela Marinay, Shinichi
Maekara, Local Civil Registrar of Quezon City, and the
Administrator and Civil Registrar General of the National
Statistics Office24 that:
To be sure, a petition for correction or cancellation of an
entry in the civil registry cannot substitute for an action
to invalidate a marriage. A direct action is necessary to
prevent circumvention of the substantive and procedural
safeguards of marriage under the Family Code, A.M. No.
02-11-10-SC and other related laws. Among these
safeguards are the requirement of proving the limited
grounds for the dissolution of marriage, support
pendente lite of the spouses and children, the
liquidation, partition and distribution of the properties of

24

the spouses and the investigation of the public

prosecutor to determine collusion. A direct action for
declaration of nullity or annulment of marriage is also
necessary to prevent circumvention of the jurisdiction of
the Family Courts under the Family Courts Act of 1997
(Republic Act No. 8369), as a petition for cancellation or
correction of entries in the civil registry may be filed in
the Regional Trial Court where the corresponding civil
registry is located. In other words, a Filipino citizen
cannot dissolve his marriage by the mere expedient of
changing his entry of marriage in the civil registry.
Aside from the certificate of marriage, no such evidence
was
presented
to
show
the
existence
of
marriage.1wphi1 Rather,
respondent
showed
by
overwhelming evidence that no marriage was entered into
and that she was not even aware of such existence. The
testimonial and documentary evidence clearly established
that the only "evidence" of marriage which is the marriage
certificate was a forgery. While we maintain that Rule 108
cannot be availed of to determine the validity of marriage,
we cannot nullify the proceedings before the trial court
where all the parties had been given the opportunity to
contest the allegations of respondent; the procedures
were followed, and all the evidence of the parties had
already been admitted and examined. Respondent indeed
sought, not the nullification of marriage as there was no
marriage to speak of, but the correction of the record of
such marriage to reflect the truth as set forth by the
evidence. Otherwise stated, in allowing the correction of
the subject certificate of marriage by cancelling the wife
portion thereof, the trial court did not, in any way,
declare the marriage void as there was no marriage to
speak of.
The best proof of a marriage is the marriage contract or
marriage certificate. But if the entries therein are false
especially regarding the identity of one of the parties, said
entries can be simply cancelled or corrected so as to show
the inexistence of the marriage. This is illustrated in this
case of Ruth.
Ruth is one of the young adult career women trying to
make good in her chosen profession with a well paying job
in a pharmaceutical company. But even while already
working, she has also not forgotten her love life. She met
Randy and they became sweethearts. After five years of
courtship, and convinced that they were meant for each
other, Ruth accepted Randys marriage proposal.
Before they can get married however, Ruth was required

PERSONS & FAMILY RELATIONS (Case Digests)

appeared and

represented

25

to get a certification from the National Statistics Office

who

herself as Ruth.

(NSO) that she was still single, or what is known as the

Furthermore, the Republic contended that in directing the

Certificate of No Marriage (CENOMAR).

cancellation of the entries in the wife portion of the

marriage contract, the RTC, in effect, declared the

To her surprise, Ruth discovered in the certificate issued to

marriage null and void which cannot be done in a petition

her by the NSO that she was already married to a certain

for cancellation or correction of entries in the civil registry

Kim Park, a Korean national, at the Cebu City Municipal

under Rule 108. Is the Republic correct?

Trial Court (MTCC). Because of this discovery, Ruth filed a

Petition for Cancellation of Entries in the Marriage

No. Even substantial errors in a civil registry may be

Contract before the Regional Trial Court (RTC) pursuant

corrected through a petition filed under Rule 108, by facts

to Rule 108 of the Rules of Court, especially the entries in

established in the appropriate adversarial proceeding.

the

portion

of

the

marriage

contract

containing

information about the wife.

In this case, Ruth was able to prove by overwhelming

evidence that no marriage was entered into and that she

During the hearing, Ruth testified and denied having

was not even aware of the existence of that marriage. The

contracted that marriage and claimed that she did not

testimonial and documentary evidence clearly established

even know Kim Park. She further explained that she could

that the only evidence of marriage which is the marriage

have not been in Cebu City during the alleged date of the

contract or certificate was a forgery. While Rule 108

wedding and appeared before the solemnizing officer

cannot be availed of to determine the validity of marriage,

because at that time she was working at a pharmaceutical

the proceedings before the trial court cannot be nullified

company in Makati. She however admitted that she knew

where all the parties had been given the opportunity to

the witnesses named in the marriage certificate as she had

contest the allegations of Ruth. Records show that the

met them while she was still working as a receptionist in a

proceedings under Rule 108 were followed, and all the

hotel. She believed that her name was used by a travel

evidence of the parties had already been admitted and

agency personnel to whom she gave her personal

examined. Ruth indeed sought, not the nullification of

circumstances when she applied for a passport.

marriage as there was no marriage to speak of, but the

correction of the record of such marriage to reflect the

She also presented as witness an employee of MTCC who

truth as established by the evidence. By ordering the

confirmed that the marriage of Kim Park was indeed

cancellation and correction of the portion in the marriage

celebrated in their office, but claimed that the alleged

contract regarding the wife, the trial court did not, in any

wife who appeared was definitely not Ruth. Then a

way, declare the marriage void as there was no marriage

document examiner also testified that her signature

to speak of (Republic of the Philippines vs. Merlinda L.

appearing in the marriage contract was forged. Based on

Olaybar, G.R. No. 189538, February 10, 2014).

these facts, the RTC decided in favor of Ruth and ordered

the cancellation and correction of the entries on the
portion of the marriage contract pertaining to the wife.
Opinion ( Article MRec ), pagematch: 1, sectionmatch: 1
The Republic of the Philippines (Republic) however
questioned this decision. They claimed that there are no
errors in the entries sought to be cancelled or corrected
because said entries are the ones provided by the person