Constancia C.

Tolentino vs CA and Consuelo David

G. R. No. L-41427
June 10, 1988

Facts

Private respondent Consuelo David married Arturo Tolentino in 1931. The marriage was dissolved and
terminated in 1943 pursuant to the law during the Japanese occupation by a decree of absolute divorce on
the grounds of desertion and abandonment by the wife for at least 3 continuous years. Arturo Tolentino
then married Pilar Adorable but she died soon after the marriage. After that, Constancia married Arturo
Tolentino on April 21, 1945 and they had 3 children. Constancia Tolentino is the present legal wife of
Arturo Tolentino. Consuelo David continued using the surname Tolentino after the divorce and up to the
time that the complaint was filed. Her usage of the surname Tolentino was authorized by the family of
Arturo Tolentino (brothers and sisters). In RTC, Consuelo David should discontinue her usage of the
surname of Tolentino. The CA decision reversed that of the RTC’s.

Issue : Whether or not the petitioner can exclude by injunction Consuelo David from using the surname
of her former husband from whom she was divorced.

Held

Philippine law is silent whether or not a divorced woman may continue to use the surname of her husband
because there are no provisions for divorce under Philippine law. On the Commentary of Tolentino as
regards Art 370 of the CC. The wife cannot claim an exclusive right to use the husband’s surname. She
cannot be prevented from using it, but neither can she restrain others from using it.
Art 371 is not applicable because it contemplates annulment while the present case refers to absolute
divorce where there is severance of valid marriage ties. Effect of divorce was more akin to death of the
spouse where the deceased woman is continued to be referred to as “Mrs. of the husband” even if he has
remarried. If the appeal would be granted the respondent would encounter problems because she was able
to prove that she entered into contracts with third persons, acquired properties and entered into other legal
relations using the surname Tolentino. Petitioner failed to show the she would suffer any legal injury or
deprivation of right. There was no usurpation of the petitioner’s name and surname. Usurpation implies
injury to the interests of the owner of the name. It consists with the possibility of confusion of identity.
The elements of usurpation were 1. Actual use of another’s name, 2. Use is unauthorized, 3. Use of
another’s name is to designate personality or identity of a person. None of these elements were present in
the case because public knowledge referred to Constancia as the legal wife of Arturo, and Consuelo did
represent herself after the divorce as Mrs. Arturo Tolentino. Silva v Peralta was cited by the petitioner but
the case is not applicable. In Silva, it was not mere use of the surname that was enjoined but the
defendant’s representation that she was the wife of Saturnino Silva, there was usurpation of the status of
the wife.