Philippine Laws on Funerals and Children's Rights

920
PERSONS AND FAMILY RELATIONS LAW
CIVIL CODE
OF THE PHILIPPINES
TITLE X. FUNERALS
Article 305. The duty and the right to make arrangements for the funeral of a relative shall be in
accordance with the order established for support,
under Article 294. In case of descendants of the
same degree, or of brothers and sisters, the oldest
shall be preferred. In case of ascendants, the paternal shall have a better right.
ARRANGEMENTS. Those who are duty-bound to make
arrangements shall be in accordance with the order established for
support. This order is now governed by Article 199 of the Family
Code which repealed Article 294 of the Civil Code and which provides
that such duty shall devolve rst on the spouse; in his or her absence
or incapacity, the descendants in the nearest degree; in the absence
or incapacity of the latter, the ascendants in the nearest degree; and
nally, in the absence of all of the said persons, the brothers and
sisters. Article 305 also provides that in case of descendants of the
same degree, or of brothers and sisters, the oldest shall be preferred.
In case of ascendants, the paternal shall have a better right.
Article 306. Every funeral shall be in keeping
with the social position of the deceased.
Article 307. The funeral shall be in accordance
with the expressed wishes of the deceased. In the
absence of such expression, his religious beliefs or
afliation shall determine the funeral rites. In case
of doubt, the form of the funeral shall be decided
upon by the person obliged to make arrangements
for the same, after consulting the other members of
the family.
920
Arts. 308-310
FUNERALS
921
KINDS OF FUNERAL. The wishes of the deceased shall be

mainly followed because this is part of the respect that should
be accorded to the dead. In the absence of such expression, his or
her religious beliefs or afliation shall determine the funeral rites
because religious beliefs cater to the spiritual and, more often than
not, the deceaseds concept of death is greatly inuenced by his or
her religious background. In case of doubt, the form of the funeral
shall be decided upon by the person obliged to make arrangements
for the same, after consulting the other members of the family. The
reason for this is that the law presumes that these people are the
ones who know the deceased very well and they are in a position to
know the kind of respect which the deceased might have desired in
his or her funeral had he or she expressed his or her wish before he
or she died.
However, in all cases, the law mandates that every funeral
shall be in keeping with the social position of the deceased. The
kind of funeral is the last manifestation of the kind of life which the
deceased has attained and the law sees to it that those who will be
in charge of the funeral arrangements will accord the right type of
respect due to the deceased.
Article 308. No human remains shall be retained, interred, disposed of or exhumed without
the consent of the persons mentioned in Articles
294 and 305.
Article 309. Any person who allows disrespect
to the dead, or wrongfully interferes with a funeral shall be liable to the family of the deceased for
damages, material and moral.
RESPECT FOR THE DEAD. Philippine culture and tradition
give reverence to the dead. Thus, any undertaking that would, in a
way, disturb the dead must be with the consent of those who will
be greatly affected. Also, damages can be sought against those who
allow disrespect to the dead, or wrongfully interfere with a funeral.
Article 310. The construction of a tombstone or
mausoleum shall be deemed a part of the funeral
expenses, and shall be chargeable to the conjugal
partnership property, if the deceased is one of the
spouses.
922
Art. 310
LIABILITY OF CONJUGAL PARTNERSHIP. If the deceased

is married, the law clearly provides that the tombstone or
mausoleum shall be deemed a part of the funeral expenses and shall
be chargeable to the conjugal partnership property.
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TITLE XII. CARE AND EDUCATION

OF CHILDREN
Article 356. Every child:

(1)
Is entitled to parental care;
(2)
Shall receive at least elementary educa-
tion;
(3) Shall be given moral and civic training by
the parents or guardian;
(4) Has a right to live in an atmosphere conducive to his physical, moral and intellectual development.
Article 357. Every child shall:
(1)
Obey and honor his parents or guardian;
(2) Respect his grandparents, old relatives,

and persons holding substitute parental authority;
(3) Exert his utmost for his education and
training;
(4) Cooperate with the family in all matters
that make for the good of the same.
Article 358. Every parent and every person
holding substitute parental authority shall see to
it that the rights of the child are respected and his
duties complied with, and shall particularly, by
precept and example, imbue the child with highmindedness, love of country, veneration for the national heroes, delity to democracy as a way of life,
and attachment to the ideal of permanent world
peace.
923
924
Arts. 359-362
Article 359. The government promotes the full

growth of the faculties of every child. For this purpose, the government will establish, whenever possible:
(1) Schools in every barrio, municipality and
city where optional religious instruction shall be
taught as part of the curriculum at the option of
the parent or guardian;
(2)
Puericulture and similar centers;
(3)
Councils for the Protection of Children;
(4)
Juvenile courts.
and
Article 360. The Council for the Protection of

Children shall look after the welfare of children in
the municipality. It shall, among other functions:
(1) Foster the education of every child in the
municipality;
(2) Encourage the cultivation of the duties of
parents;
(3) Protect and assist abandoned or mistreated children, and orphans;
(4)
Take steps to prevent juvenile delinquen-
(5)
Adopt measures for the health of children;
cy;
(6) Promote the opening and maintenance of

playgrounds;
(7) Coordinate the activities of organizations
devoted to the welfare of children, and secure their
cooperation.
Article 361. Juvenile courts will be established, as far as practicable, in every chartered city
or large municipality.
Article 362. Whenever a child is found delinquent by any court, the father, mother, or guardian
may in a proper case be judicially admonished.
Arts. 363
CARE AND EDUCATION OF CHILDREN
Article 363. In all questions on the care, custody, education and property of children, the latters welfare shall be paramount. No mother shall
be separated from her child under seven years of
age, unless the court nds compelling reasons for
such measure.
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926
TITLE XIII. USE OF SURNAMES

SURNAME AND MIDDLE NAME. The legal importance of a
surname is highlighted by the fact that there are so many cases
decided by the Supreme Court concerning surnames.
A persons name is the designation by which he is known
and called in the community in which he lives and is best known.
It is dened as the word or combination of words by which a
person is distinguished from other individuals and, also, as
the label or appellation which he bears for the convenience of
the world at large addressing him, or in speaking of or dealing
with him. It is both of personal as well as public interest that
every person must have a name. The name of an individual has
two parts: (1) the given or proper name and (2) the surname or
family name. The given or proper name is that which is given
to the individual at birth or at baptism, to distinguish him from
other individuals. The surname or family name is that which
identies 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 xed by law (In the matter of the adoption of
Stephanie Nathy Astorga Garcia, G.R. No. 148311, March 31,
2005, 454 SCRA 541).
A name is said to have the following characteristics: (1)
It is absolute, intended to protect the individual from being
confused with others. (2) It is obligatory in certain respects, for
nobody can be without a name. (3) It is xed, unchangeable,
or immutable, at least at the start, and maybe changed only
for good cause and by judicial proceedings. (4) It is outside the
commerce of man, and therefore inalienable and intransmissible
by act inter vivos or mortis causes. (5) It is imprescriptible (In
Re: Petition for Change of Name and/or Correction of Entry
in the Civil Registry of Julian Lin Carulasan Wang, G.R. No.
159966, March 30, 2005, 454 SCRA 155).
Middle names have a practical and legal signicance in
that they serve to identify the maternal lineage or liation of a
person as well as further distinguish him or her from others who
926
Arts. 364-365
USE OF SURNAMES
927
may have the same given name and surname as he or she has.
A middle name cannot just be dropped without compelling or
justiable reasons. It cannot be dropped merely because it is an
inconvenience to the person using it (In Re: Petition for Change
of Name and/or Correction of Entry in the Civil Registry of
Julian Lin Carulasan Wang, G.R. No. 159966, March 30, 2005,
454 SCRA 155).
Article 364. Legitimate and legitimated children shall principally use the surname of the father.
LEGITIMATE AND LEGITIMATED CHILDREN. Article 174
of the Family Code provides, among others, that legitimate children
shall have the right to bear the surname of the father and the
mother. Article 179 of the Family Code provides that legitimated
children shall enjoy the same rights as legitimate children and
therefore, they shall likewise have the right to bear the surname of
the father and the mother.
In Alfon v. Republic, G.R. No. L-51201, May 29,1980, 97 SCRA
858, the Supreme Court ruled that the worked principally used
in Article 364 is not equivalent to exclusively so that there is no
legal obstacle if a legitimate or legitimated child should choose to
use the surname of the mother to which it is equally entitled. In
the said Alfon case, the Supreme Court also found as justied the
use of the use of the mothers surname considering that the child
has been using it already in various records and hence changing the
childs surname in her birth certicate from that of her father to her
mother was justied to avoid confusion.
Article 365. An adopted child shall bear the
surname of the adopter.
ADOPTED CHILD. Section 17, Article 5 of Republic Act 8552,
otherwise known as the Domestic Adoption Act of 1998, provides
that the adoptee shall be considered the legitimate son/daughter of
the adopter(s) for all intents and purposes and as such is entitled
to all the rights and obligations provided by law to legitimate sons/
daughters without discrimination of any kind and, to this end, the
adoptee is entitled to love, guidance and support in keeping with the
means of the family. One of the rights of the adopted is, therefore,
the right to use the surname of the adopter.
928
Arts. 366-370
Article 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.
Article 367. Natural children by legal ction
shall principally employ the surname of the father.
Article 368. Illegitimate children referred to in
Article 287 shall bear the surname of the mother.
ILLEGITIMATE CHILDREN. Under the new Family Code,
there are only two classes of children, namely, legitimate and
illegitimate. The ve distinctions among various types of illegitimate
children under the Civil Code have been eliminated (Gapusan Chua
v. Court of Appeals, 183 SCRA 160). Article 176 of the Family Code
provides that
illegitimate children shall use the surname and shall be under
the parental authority of their mother, and shall be entitled
to support in conformity with this Code. However, illegitimate
children may use the surname of their father if their liation
has been expressly recognized by the father through the record
of birth appearing in the civil register, or when an admission in
a public document or private handwritten instrument is made
by the father. Provided, the father has the right to institute an
action before the regular courts to prove non-liation during his
lifetime. The legitime of each illegitimate child shall consist of
one-half of the legitime of a legitimate child (as amended by
Republic Act No. 9255).
Article 369. Children conceived before the decree annulling a voidable marriage shall principally use the surname of the father.
CONCEPTION INSIDE AN ANNULLABLE MARRIAGE.
Legitimate children are those conceived or born inside a valid marriage. An annullable marriage is valid until annulled or terminated.
Hence, a child conceived inside a marriage prior to its annulment is
legitimate.
Article 370. A married woman may use:
(1) Her maiden rst name and surname and
add her husbands surname, or
Art. 370
USE OF SURNAMES
929
(2) Her maiden rst name and her husbands

surname, or
(3) Her husbands full name, but prefexing a
word indicating that she is his wife, such as Mrs.
MARRIED WOMAN. Article 370 is directory and permissive in
character because when a woman gets married, she does not change
her name but only her civil status. Moreover this is consistent
with the rule that surname indicates descent (Remo v. Honorable
Secretary of Foreign Affairs, G.R. No. 169202, March 5, 2010; Yasin
v. Honorable Judge Sharia District Court, 311 Phil 696, 707). A
married woman can maintain her name and surname or follow
any of the names in Article 370. Thus, a validly married woman
has actually four alternatives in the use of a name. Thus, Corazon
Cojuangco married to Benigno Aquino, Jr. may use either Corazon
Cojuangco, Corazon Cojuangco-Aquino, Corazon Aquino or Mrs.
Benigno Aquino, Jr.
In Remo v. Honorable Secretary of Foreign Affairs, G.R. No.
169202, March 5, 2010, the Supreme Court ruled that, for purposes
of surnames used in the passport, a married woman who opted to
use the surname of her husband in her passport must continue to
use it in case of renewal. She cannot revert to using her maiden
surname because, pursuant to Republic Act No. 8239, the law
regulating the issuance of passport, a married woman who used the
surname of her husband in initially obtaining a passport can change
her surname to her maiden surname in subsequent renewals only
if the marriage were annulled or nullied or the woman obtained
a valid divorce abroad. The Supreme Court likewise stated that
Republic Act No. 8239 is a more specic law than the Civil Code on
surnames and therefore the former should prevail. It is submitted
that the decision of the Supreme Court in the Remo case should
have been the other way around. The woman should have been
allowed to use her maiden surname. This decision should not have
been decided from the perspective of mere statutory construction
but it should have been determined from a rights-based perspective
which is more fundamental. Article 370 of the Civil Code deals with
a fundamental right to the use of a surname by a woman. Republic
Act No. 8239 merely deals with a procedural rule that does not go
into the intrinsic signicance of the importance of a surname. While
it may be true that a passport is the property of the State, this is not
enough reason to deprive its citizen of a fundamental right which
the State must also protect.
930
Arts. 371-374
Article 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 husbands surname, unless:
(1)
The court decrees otherwise, or
(2) She or the former husband is married

again to another person.
ANNULMENT. In the event that the marriage is annulled,
there are certain rules to be followed in so far as the wife is concerned.
Thus, if Maria Clara-De la Cruzs marriage to Juan De la Cruz is
annulled and if the said wife is the guilty party, she should resume
using Maria Clara. If she is the innocent spouse, she may use Maria
Clara or Maria Clara-De la Cruz depending upon her choice unless
the court decrees otherwise or unless she marries Sam America in
which case she will follow the rule under Article 370 in connection
with her being married to Sam America.
Article 372. When legal separation has been
granted, the wife shall continue using her name
and surname employed before the legal separation.
LEGAL SEPARATION. In legal separation the bond of marriage
is not severed. The husband and the wife are only separated from
bed and board. Hence, the wife may use her name and surname
employed before the legal separation (See Laperal v. Republic, 6
SCRA 357).
Article 373. A widow may use the deceased
husbands surname as though he were still living,
in accordance with Article 370.
WIDOW. A widow is a person whose husband is dead. She
can use the surname of the husband as if he were still living in
accordance with Article 370.
Article 374. In case of identity of names and
surnames, the younger person shall be obliged to
use such additional name or surname as will avoid
confusion.
Arts. 375-376
USE OF SURNAMES
931
IDENTITY OF NAMES. So that confusion can be prevented,

the law provides that additional names or surnames shall be used
by younger people. Thus, if parents would want to name their son
after his godfather who is not related to them, the said son must use
an additional name or surname. Hence, if the name of the godfather
is Juan de la Cruz, the godson must use an additional name such as
Juan Pedro de la Cruz.
Article 375. In case of identity of names and
surnames between ascendants and descendants,
the word Junior can be used only by a son.
Grandsons and other direct male descendants shall
either:
(1) Add a middle name or the mothers surname, or
(2)
Add the Roman numerals II, III, and so
on.
IDENTITY OF NAMES BETWEEN ASCENDANTS AND
DESCENDANTS. According to the law, only the son can use the
word junior in case of identity of names between ascendants and
descendants. Hence, the son of Juan de la Cruz who has the same
name shall use Juan de la Cruz, Junior. Any other direct descendant
other than a son could either add a middle name or the mothers
surname, or add the Roman numerals II, III, and so on. Hence, if
Juan de la Cruz, Junior, who is married to Julieta Santos, has a son
with the same name, such son shall use Juan Ricardo de la Cruz, or
Juan Santos-de la Cruz, or Juan de la Cruz III. If Juan de la Cruz
names his son after his father, Roberto de la Cruz, such son shall be
named Roberto de la Cruz II.
Article 376. No person can change his name or
surname without judicial authority.
REPUBLIC ACT NUMBERED 9048. Article 366 and also
Article 412 of the Civil Code have been amended by Republic Act
Number 9048, otherwise known as An Act Authorizing the City
or Municipal Civil Registrar or the Consul General to Correct a
Clerical or Typographical Error in an Entry and/or Change of First
Name or Nickname in the Civil Register Without Need of Judicial
Order. Amending for this Purpose Articles 376 and 412 of the Civil
Code of the Philippines. The Act is a consolidation of House Bill No.
932
Art. 376
9797 and Senate Bill No. 2159. It was nally passed by the House of
Representatives on February 7, 2001 and by the Senate on February
8, 2001. It was signed by President Gloria Macapagal-Arroyo on
March 22, 2001. The complete text of the law is as follows:
Section 1. Authority to Correct Clerical or Typographical
Error and Change of First Name or Nickname. No entry in
a civil register shall be changed or corrected without a judicial
order, except for clerical or typographical errors and change of
rst name or nickname which can be corrected or changed by the
concerned city or municipal civil registrar or consul general in
accordance with the provisions of this Act and its implementing
rules and regulations.
Sec. 2. Denitions of Terms. As used in this Act, the
following terms shall mean:
(1) City or municipal civil registrar refers to the head
of the local civil registry ofce of the city or municipality, as the
case may be, who is appointed as such by the city or municipal
mayor in accordance with the provisions of existing laws.
(2) Petitioner refers to a natural person ling the
petition and who has direct and personal interest in the
correction of a clerical or typographical error in an entry or
change of rst name or nickname in the civil register.
(3) Clerical or typographical error refers to a mistake
committed in the performance of clerical work in writing,
copying, transcribing or typing an entry in the civil register
that is harmless and innocuous, such as misspelled name or
misspelled place of birth or the like, which is visible to the
eyes or obvious to the understanding, and can be corrected or
changed only by reference to other existing record or records:
Provided, however, That no correction must involve the change
of nationality, age, status or sex of the petitioner.
(4) Civil register refers to the various registry books
and related certicates and documents kept in the archives of
the local civil registry ofces, Philippine Consulates and of the
Ofce of the Civil Registrar General.
(5) Civil registrar general refers to the administrator
of the National Statistics Ofce which is the agency mandated
to carry out and administer the provision of laws on civil
registration.
(6) First name refers to a name or a nickname given to
a person which may consist of one or more names in addition to
the middle and last names.
Art. 376
USE OF SURNAMES
Sec. 3. Who may File the Petition and Where. Any

person having direct and personal interest in the correction of
a clerical or typographical error in an entry and/or change of
rst name or nickname in the civil register may le, in person,
a veried petition with the local civil registry ofce of the city
or municipality where the record being sought to be corrected or
changed is kept.
In case the petitioner has already migrated to another
place in the country and it would not be practical for such party,
in terms of transportation expenses, time and effort to appear
in person before the local civil registrar keeping the documents
to be corrected or changed, the petition may be led, in person,
with the local civil registrar of the place where the interested
party is presently residing or domiciled. The two (2) local civil
registrars concerned will then communicate to facilitate the
processing of the petition.
Citizens of the Philippines who are presently residing or
domiciled in foreign countries may le their petition, in person,
with the nearest Philippine Consulates.
The petitions led with the city or municipal civil registrar
or the consul general shall be processed in accordance with this
Act and its implementing rules and regulations.
All petitions for the correction of clerical or typographical
errors and/or change of rst names or nicknames may be availed
for only once.
Sec. 4. Grounds for Change of First Name or Nickname.
The petition for change of rst name or nickname may be
allowed in any of the following cases:
(1) The petitioner nds the rst name or nickname to be
ridiculous, tainted with dishonor or extremely difcult to write
or pronounce;
(2) The new rst name or nickname has been habitually
and continuously used by the petitioner and he has been publicly
known by the rst names or nicknames in the community; or
(3)
The change will avoid confusion.
Sec. 5. Form and Contents of the Petition. The petition

shall be in the form of an afdavit, subscribed and sworn to
before any person authorized by law to administer oaths. The
afdavit shall set forth facts necessary to establish the merits of
the petition and shall show afrmatively that the petitioner is
competent to testify to the matters stated. The petitioner shall
state the particular erroneous entry or entries which are sought
to be corrected and/or the change sought to be made.
933
934
Art. 376
The petition shall be supported with the following

documents:
(1) A certied true machine copy of the certicate or of
the page of the registry book containing the entry or entries
sought to be corrected or changed;
(2) At least two (2) public or private documents showing
the correct entry or entries upon which the correction or change
shall be based; and
(3) other documents which the petitioner or the city or
municipal civil registrar, or the consul general may consider
relevant and necessary for the approval of the petition.
In case of change of rst name or nickname, the petition
shall likewise be supported with the documents mentioned in
the immediately preceding paragraph. In addition, the petition
shall be published at least once a week for two (2) consecutive
weeks in a newspaper of general circulation. Furthermore, the
petitioner shall submit a certication from the appropriate law
enforcement agencies that he has no pending case or no criminal
record.
The petition and its supporting papers shall be led in
three (3) copies to be distributed as follows: rst copy to the
concerned city or municipal civil registrar, or the consul general;
second copy to the Ofce of the Civil Registrar General; and the
third copy to the petitioner.
Sec. 6. Duties of the City of Municipal Civil Registrar or
the Consul General. The city or municipal civil registrar
or the consul general to whom the petition is presented shall
examine the petition and its supporting documents. He shall
post the petition in a conspicuous place provided for the purpose
for ten (10) consecutive days after he nds the petition and its
supporting documents sufcient in form and substance.
The city or municipal civil registrar or the consul general
shall act on the petition and shall render a decision not later
than ve (5) working days after the completion of the posting
and/or publication requirement. He shall transmit a copy of
his decision together with the records of the proceedings to the
Ofce of the Civil Registrar General within ve (5) working
days from the date of the decision.
Sec. 7. Duties and Powers of the Civil Registrar General.
The civil registrar general shall, within ten (10) working days
from receipt of the decision granting a petition, exercise the
power to impugn such decision by way of an objection based on
the following grounds:
Art. 376
USE OF SURNAMES
(1)
The error is not clerical or typographical;
(2) The correction of an entry or entries in the civil

register is substantial or controversial as it affects the civil
status of a person; or
(3) The basis used in changing the rst name or
nickname of a person does not fall under Section 4.
The civil registrar general shall immediately notify the
city or municipal civil registrar or the consul general of the
action taken on the decision. Upon receipt of the notice thereof,
the city or municipal civil registrar or the consul general shall
notify the petitioner of such action.
The petitioner may seek reconsideration with the civil
registrar general or le the appropriate petition with the proper
court.
If the civil registrar general fails to exercise his power
to impugn the decision of the city or municipal registrar or of
the consul general within the period prescribed herein, such
decision shall become nal and executory.
Where the petition is denied by the city or municipal civil
registrar or the consul general, the petitioner may either appeal
the decision to the civil registrar general or le the appropriate
petition with the proper court.
Sec. 8. Payment of Fees. The city or municipal civil
registrar or the consul general shall be authorized to collect
reasonable fees as a condition for accepting the petition. An
indigent petitioner shall be exempt from the payment of the
said fee.
Sec. 9. Penalty Clause. A person who violates any of the
provisions of this Act shall, upon conviction, be penalized by
imprisonment of not less than six (6) years but not more than
twelve (12) years, or a ne of not less than Ten thousand pesos
(P10,000.00) but not more than One hundred thousand pesos
(P100,000.00), or both, at the discretion of the court.
In addition, if the offender is a government ofcial or
employee, he shall suffer the penalties provided under civil
service laws, rules and regulations.
Sec. 10. Implementing Rules and Regulations. The civil
registrar general shall, in consultation with the Department
of Justice, the Department of Foreign Affairs, the Ofce of the
Supreme Court Administrator, the University of the Philippines
Law Center and the Philippine Association of Civil Registrars,
issue the necessary rules and regulations for the effective
935
936
Art. 376
implementation of this Act not later than three (3) months from
the effectivity of this law.
Sec. 11. Retroactivity Clause. This Act shall have
retroactive effect insofar as it does not prejudice or impair
vested or acquired rights in accordance with the Civil Code and
other laws.
Sec. 12. Separability Clause. If any portion or provision
of this Act is declared void or unconstitutional, the remaining
portions or provisions thereof shall not be affected by such
declaration.
Sec. 13. Repealing Clause. All laws, decrees, orders,
rules and regulations, other issuances, or parts thereof
inconsistent with the provisions of this Act are hereby repealed
or modied accordingly.
Sec. 14. Effectivitiy Clause. This Act shall take effect
fteen (15) days after its complete publication in at least two (2)
national newspapers of general circulation.
CHANGE OF NAME AND SURNAME. A change of name is

a privilege and not a matter of right, so that before a person can
be authorized to change his or her name given either in his or her
certicate or civil registry, he or she must show proper or reasonable
cause or any compelling reason which may justify such change (Yu
Chi Han v. Republic, 15 SCRA 454; Ng Yao Siong v. Republic, 16
SCRA 483). A change of name or nickname can be effected through
the ofce of the local civil registrar reviewable by the ofce of the
Civil Registrar General and nally the courts.
A change of surname is however, a matter of judicial discretion
which must be exercised in the light of the reasons adduced and the
consequences that will likely follow (Yu v. Republic, 17 SCRA 253).
A person should not be allowed to use a surname which otherwise
he is not permitted to employ under the law (Manuel v. Republic, 1
SCRA 836).
REASONS FOR CHANGE OF NAME. The purpose of the law
in allowing a change of name or surname is to give a person an
opportunity to improve his or her personality and to promote his or
her best interest (Calderon v. Republic, 19 SCRA 721). But to justify
a change of name, there must exist a proper and reasonable cause or
compelling reason. The reasons for change of name or nickname are
all provided in Section 4 of R.A. 9048. The following have been held
to constitute proper and reasonable causes or compelling reasons
Art. 376
USE OF SURNAMES
937
for change of surname: (1) a ridiculous name, a name tainted with

dishonor, or a name extremely difcult to write or pronounce; (2) a
change of civil status; and (3) a need to avoid confusion (Republic v.
Taada, 42 SCRA 419). Also, it has been held that, in the absence
of prejudice to the State or any individual, a sincere desire to adopt
a Filipino name to erase signs of a former alien nationality which
unduly hamper social and business life, is a proper and reasonable
cause for a change of surname (Uy v. Republic, 15 SCRA 457).
In Silverio v. Republic, G.R. No. 174689 October 19, 2007,
537 SCRA 373, the Supreme Court ruled that , a male person who
had a surgical sexual reassignment where she became biologically
a woman cannot use that ground as reason to change his name
from Rommel to Mely as a persons sex is immutable from birth.
However, in Republic v. Cagandahan, G.R. No. 166676, September
12, 2008, 565 SCRA 72, a change of name from Jennifer to Jeff
was allowed even without surgical sexual reassignment in a case
where the person was found out to have Congenital Adrenal
Hyperplasia (CAH) which was a rare biological situation where the
person had the sex organs of a male and a female and where the
person nally considered his sex as a male considering that he had
no menstruation and no breast as a woman and was wanting in
woman-hormones. The Supreme Court said:
Respondent here has simply let nature take its course
and has not taken unnatural steps to arrest or interfere with
what he was born with. And accordingly, he has already ordered
his life to that of a male. Respondent could have undergone
treatment and taken steps, like taking lifelong medication, to
force his body into the categorical mold of a female but he did
not. He chose not to do so. Nature has instead taken its due
course in 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 t the
mold of a female, as society commonly currently knows this
gender of the human species. Respondent is the one who has
to live with his intersex anatomy. To him belongs the human
right to the pursuit of happiness and of health. Thus, to him
938
Art. 376
should belong the primordial choice of what courses of action to

take along the path of his sexual development and maturation.
In the absence of evidence that respondent is an incompetent
in the absence of evidence to show that classifying respondent
as a male will harm other members of society who are equally
entitled to protection under the law, the Court afrms as
valid and justied the respondents position and his personal
judgment of being a male.
In a case where a divorced woman subsequently remarried

and desired to have her childs surname changed to the surname of
her second husband who had always treated the child with love and
affection, the Supreme Court rejected the plea for change of name
and observed:
Anent the rst issue, the government sustains a negative
stand for the reason that our laws do not authorize a legitimate
child to use the surname of a person who is not his father, for,
as a matter of fact, Article 364 of the Civil Code specically
provides that legitimate children shall principally use the
surname of their father. Mention is also made of Article 369
of the same Code which provides that in case of annulment of
voidable marriage the children conceived before the annulment
shall principally use the surname of the father, and considering
by analogy the effect of a decree of divorce, it is concluded that
the children who are conceived before such a decree should also
be understood as carrying the surname of the real father, which,
in this case, is Velarde.
We nd 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 rst husband die or be separated by a decree of divorce,
there may result a confusion as to his real paternity. In the long
run, the change may redound to the prejudice of the child in the
community.
While the purpose which may have animated petitioner
is plausible and may run along the feeling of cordiality and
spiritual relationship that pervades among the members of the
Moore family, our hand is deferred by a legal barrier which we
cannot at present overlook or brush aside.
Another factor to be reckoned with is the fact that the child
concerned is still a minor who for the present cannot fathom
what would be his feeling when he comes to a mature age. Any
way, if the time comes, he may decide the matter for himself
and take such action as our law may permit. For the present
Art. 376
USE OF SURNAMES
939
we deem the action taken by petitioner premature (Moore v.

Republic, 8 SCRA 282).
However, in a subsequent case, the Supreme Court allowed

the change of surname of an illegitimate child as it would appear
that it was for the best interest of the child. The Supreme Court, in
Calderon v. Republic, 19 SCRA 721, observed and ruled, to wit:
The lower court found that petitioner Gertrudes Josena
was born on March 17, 1956, an illegitimate child of Manuel
del Pradeo and Corazon Adolfo as a result of their bigamous
marriage which was annulled on July 18, 1957, after a judgment
of conviction of said Manuel del Prado on the complaint for
bigamy on December 5, 1956; that subsequently, on December
26, 1957, Corazon Adolfo, mother of the petitioner, got married
to Romeo C. Calderon; that the petitioner is living with her
mother and her foster father; and that Romeo C. Calderon
declared in open court his consent to the petitioners adopting
his surname, especially so because he is the one supporting her.
The lower court says: In the opinion of the Court the reasons
adduced by the petitioner are valid and will redound to the best
interests of said minor who after all is not at fault to have come
to this world as an illegitimate child.
We agree with the court a quo. A petition to change the
name of an infant, as in this case, should be granted only where
to do so is clearly for the best interest of the child. When the
mother of the petitioner led the instant petition, she had in
mind what she believed was for the best interest of her child,
considering that her husband Romeo C. Calderon is the one
supporting the child and that he is agreeable to the childs
using his surname. The mother had considered the generous
attitude of her husband as an opportunity for her to promote
the personality and enhance the dignity, of her daughter by
eliminating what constitutes a stigma of illegitimacy which
her child would continue to bear if her surname is that of her
legitimate father.
The Solicitor General, in his brief, avers that the evident
purpose of petitioner in seeking a change of her surname is to
conceal her status as an illegitimate child and that any attempt
to conceal illegitimacy cannot be motivated by good faith and
an honest purpose. The Solicitor General further alleges that
to authorize the change of the name of the petitioner would be
to sanction a misrepresentation because the petitioner wants
to appear as if she is the daughter of Romeo C. Calderon. We
cannot agree with the view of the Solicitor General. The Solicitor
940
Art. 376
General seems to support the idea that since the petitioner has
the misfortune of being born illegitimate she must bear that
stigma of illegitimacy as long as she lives. That idea should not
be countenanced. Justice dictates that every person be allowed
to avail of any opportunity to improve his social standing as
long as in so doing he does not cause prejudice or injury to the
interests of the State or of other people.
The Solicitor General also contends that the status of the
petitioner is that of a natural child by legal ction and under
Article 367 of the Civil Code, she shall principally enjoy the
surname of the father. We agree with the lower court when it
said that While it is true that the Code provides that a natural
child by legal ction as the petitioner herein shall principally
enjoy the surname of the father, yet, this does not mean that
such child is prohibited by law from taking another surname
with the latters consent and for justiable reasons. If under
the law a legitimate child may secure a change of name
through judicial proceedings, upon a showing of a proper and
reasonable cause, we do not see any reason why a natural child
cannot do the same. The purpose of the law in allowing a change
of name, as contemplated by the provisions of Rule 103 of the
Rules of Court, is to give a person an opportunity to improve his
personality and to promote his best interests. We are satised
that the facts and circumstances as borne out by the record
amply justify the change of surname of the petitioner as ordered
by the lower court. We have held that the matter whether to
grant or deny a petition for a change of name is left to the sound
discretion of the court, and in the present case we believe that
the court a quo had exercised its discretion in a judicious way
when it granted the petition.
EFFECT OF CHANGE OF NAME. A change of name does not

alter family relations, rights or duties, legal capacity, civil status or
citizenship (Calderon v. Republic, 19 SCRA 721).
What is altered is only the name, which is that word or
combination of words by which a person is distinguished
from others and which he bears as a label or appellation for
the convenience of the world at large in addressing him, or
in speaking of or dealing with him (In re Petition for Change
of Name of Joselito Yu, Juan S. Barrera v. Republic of the
Philippines, L-20874, May 25, 1966).
NATURE OF PROCEEDINGS. The procedure for change of

name is provided for in Section 3 up to 7 of R.A. No. 9048. However,
a petition for change of surname is a judicial proceeding in rem (Tan
Art. 376
USE OF SURNAMES
941
v. Republic, 4 SCRA 1128). The judicial proceeding for change of

surname is governed by Rule 103 of the Rules of Court, to wit:
Section 1. Venue. A person desiring to change his name
shall present the petition to the Court of First Instance [now
Regional Trial Court] of the province in which he resides, or,
in the City of Manila, to the Juvenile and Domestic Relations
Court (now Regional Trial Court).
Section 2. Contents of petition. A petition for change
of name shall be signed and veried by the person desiring his
name changed, or some other person on his behalf, and shall set
forth:
(a) That the petitioner has been a bona de resident
of the province where the petition is led for at least three (3)
years prior to the date of such ling;
(b) The cause for which the change of the petitioners
name is sought;
(c)
The name asked for.
Section 3. Order for hearing. If the petition led is

sufcient in form and substance, the court, by an order reciting
the purpose of the petition, shall x a date and place for the
hearing thereof, and shall direct that a copy of the order be
published before the hearing at least once a week for three
(3) successive weeks in some newspaper of general circulation
published in the province, as the court shall deem best. The
date set for the hearing shall not be within (30) days prior to an
election nor within four (4) months after the last publication of
the notice.
Section 4. Hearing. Any interested person may appear
at the hearing and oppose the petition. The Solicitor General or
the proper provincial or city scal shall appear on behalf of the
Government of the Philippines.
Section 5. Judgment. Upon satisfactory proof in open
court on the date xed in the order that such order has been
published as directed and that the allegations of the petition are
true, the court shall, if proper and reasonable cause appears for
changing the name of the petitioner, adjudge that such name be
changed in accordance with the prayer of the petition.
Section 6. Service of judgment. Judgments or orders
rendered in connection with this rule shall be furnished the civil
registrar of the municipality or city where the court issuing the
same is situated, who shall forthwith enter the same in the civil
register.
942
Arts. 377-378
Although Rule 103 refers to change of name, it should refer

to surname in view of the fact that change of name is now governed
by Republic Act No. 9048.
It has been importantly held that publication of the petition for
change of name is essential for the court to acquire jurisdiction (Ng
Yao v. Republic, 16 SCRA 483). Publication is notice to the whole
world that the proceeding has for its object to bar indifferently all
who might be minded to make an objection of any sort against the
right sought to be established (Rendora v. Republic, 35 SCRA 483).
Article 377. Usurpation of a name and surname
may be the subject of an action for damages and
other relief.
Article 378. The unauthorized or unlawful use
of another persons surname gives a right of action
to the latter.
USURPATION OF NAME. In Tolentino v. Court of Appeals,
162 SCRA 66, where the current wife led an action to prevent
the former wife of her husband to use the surname of the said
husband, the Supreme Court ruled that there was no usurpation
and pertinently stated:
There is no usurpation of the petitioners name and
surname in this case so that the mere use of the surname
Tolentino by the private respondent cannot be said to have
injured the petitioners rights. The usurpation of name implies
some injury to the interests of the owner of the name. It consists
in the possibility of confusion of identity x x x between the
owner and the usurper. It exists when a person designates
himself by another name x x x. The following are the elements of
usurpation of a name: 1) there is an actual use of anothers name
by the defendant; 2) the use is unauthorized; and 3) the use of
anothers name is to designate personality or identify a person
(Tolentino, supra, p. 685). None of these elements exists in the
case at bar and neither is there a claim by the petitioner that
the private respondent impersonated her. In fact, it is of public
knowledge that Constancia Tolentino is the legal wife of Arturo
Tolentino so that all invitations for Senator and Mrs. Arturo
Tolentino are sent to Constancia. Consuelo never represented
herself after the divorce as Mrs. Arturo Tolentino but simply
Mrs. Consuelo David-Tolentino. The private respondent has
legitimate children who have every right to use the surname
Tolentino. She could not possibly be compelled to use the prex
Arts. 379-380
USE OF SURNAMES
943
Miss or use the name Mrs. David, different from the surnames
of her children. The records do not show that she has legally
remarried.
In Silva, et al. v. Peralta (110 Phil. 57), cited by the
petitioner, it was not the mere use of the surname that was
enjoined but the defendants representation that she was the
wife of Saturnino Silva. There was, therefore, a usurpation of
the wifes status which is absent in the case at bar.
We rule that the use of the surname Tolentino does not
impinge on the rights of the petitioner.
Considering the circumstances of this petition, the age
of the respondent who may be seriously prejudiced at this
stage of her life, having to resort to further legal procedures in
reconstituting documents and altering legal transactions where
she used the surname Tolentino, and the effects on the private
respondent, who while still not remarried, will have to use a
surname different from the surnames of her own children, we
nd it just and equitable to leave things as they are, there being
no actual legal injury to the petitioner save a deep hurt to her
feelings which is not a basis for injunctive relief.
Article 379. The employment of pen names or

stage names is permitted, provided it is done in
good faith and there is no injury to third persons.
Pen names and stage names cannot be usurped.
Article 380. Except as provided in the preceding article, no person shall use different names and
surnames.
PEN NAMES OR STAGE NAMES. A person may use a name
other than his name. This name is called pen name or stage name.
Journalists and artists usually use pen names and stage names.
However, for them to be able to do so, it must be done in good faith
and without injury to third persons. Indeed, people using pen names
and stage names can have a vested right on such names because the
law also provides that it cannot be usurped.
944
TITLE XIV. ABSENCE

Chapter 1
PROVISIONAL MEASURES IN CASE
OF ABSENCE
Article 381. When a person disappears from
his domicile, his whereabouts being unknown, and
without leaving an agent to administer his property, the judge, at the instance of an interested party,
a relative, or a friend, may appoint a person to represent him in all that may be necessary.
This same rule shall be observed when under
similar circumstances the power conferred by the
absentee has expired. (181a)
Article 382. The appointment referred to in
the preceding article having been made, the judge
shall take the necessary measures to safeguard the
rights and interests of the absentee and shall specify the powers, obligations and remuneration of his
representative, regulating them, according to the
circumstances, by the rules concerning guardians.
(182)
Article 383. In the appointment of a representative, the spouse present shall be preferred when
there is no legal separation.
If the absentee left no spouse, or if the spouse
present is a minor, any competent person may be
appointed by the court. (183a)
COURT APPOINTMENT. It is necessary that the appointment
of a representative of an absentee be made by way of a court order
(Ablang v. Fernandez, 25 Phil. 33), and it must be noted that a
944
Arts. 381-383
ABSENCE
Provisional Measures in Case of Absence
945
spouse must likewise le an application for appointment with the

courts with respect to the properties of his or her very own absent
spouse. If there is no legal separation, the spouse present shall be
preferred.
The phrase or if the spouse present is a minor in the second
paragraph of Article 383 has already been repealed by Republic Act
No. 6809 which lowered the age of emancipation to 18 years of age.
Thus, a person who marries must necessarily be at least 18 years of
age for the marriage to be valid.
946
Chapter 2
DECLARATION OF ABSENCE
Article 384. Two years having elapsed without
any news about the absentee or since the receipt of
the last news, and ve years in case the absentee
has left a person in charge of the administration of
his property, his absence may be declared. (184)
Article 385. The following may ask for the declaration of absence:
(1)
The spouse present;
(2) The heirs instituted in a will, who may

present an authentic copy of the same;
(3) The relatives who may succeed by the law
of intestacy;
(4) Those who may have over the property of
the absentee some right subordinated to the condition of his death. (185)
Article 386. The judicial declaration of absence
shall not take effect until six months after its publication in a newspaper of general circulation. (186a)
JUDICIAL DECLARATION OF ABSENCE. A judicial declaration of absence is necessary for interested persons to be able to
protect their rights, interests and benets in connection with the
person who has disappeared. It is also necessary to protect the interest of the absentee.
SPOUSE. For a spouse, a judicial declaration of absence can be
a sufcient cause for an involuntary judicial separation of property
between spouses under Article 135 of the Family Code and, therefore,
a basis for the termination of the absolute community property or
946
Arts. 384-386
ABSENCE
Declaration of Absence
947
the conjugal partnership of gains pursuant to Articles 99, 126, 134

to 138 of the Family Code; a ground for the transfer of all classes
of exclusive properties of a spouse to his or her other spouse under
Article 142 of the Family Code; and a basis that can be used for the
termination of parental authority under Article 229 of the Family
Code.
TESTAMENTARY HEIRS. If a person executes a will and he
institutes another person as the one who will succeed him or her in
his or her property, such person can seek for the judicial declaration
of absence of the testator.
INTESTATE HEIRS. The intestate heirs are those specied in
Section 2, Subsections 1 to 6, Chapter 3 of Title IV, Book III of the
Civil Code relative to the rules of successions. Hence, as a general
rule and in proper cases provided in the said Title IV of the Civil
Code, the legitimate and illegitimate relatives of the deceased, the
spouse, and the collateral relatives are the intestate heirs.
INTERESTED PARTY. The law also provides that those who
may have over the property of the absentee some right subordinated
to the condition of the absentees death may seek the judicial
declaration of absence. For example, during the time when the
person was still present he or she executed a valid contract with
another person providing that, if he dies in 1993, the said person
shall have the right to repurchase his former house which was sold
to the absentee when the latter was still present, such interested
person can seek the judicial declaration of absence of the absentee as
his right of repurchase is subordinated to the death of the absentee.
In this regard, Article 42 of the Civil Code also provides that the
effect of death upon the rights and obligations of the deceased person
is determined, among others, by contract.
EFFECTIVITY OF JUDICIAL DECLARATION. The law
provides that the judicial declaration of absence shall not take
effect until six months after its publication in a newspaper of
general circulation. However, the absence of the absentee shall be
counted not from the effectivity of the judicial decree but from the
date on which the last news of the absentee was received (Jones v.
Hortiguela, 64 Phil. 179).
948
Chapter 3
ADMINISTRATION OF THE PROPERTY
OF THE ABSENTEE
Article 387. An administrator of the absentees
property shall be appointed in accordance with Article 383. (187a)
Article 388. The wife who is appointed as an
administratrix of the husbands property cannot
alienate or encumber the husbands property, or
that of the conjugal partnership, without judicial
authority. (188a)
PROHIBITION ON ALIENATION. While Article 388 refers
only to the wife, a husband likewise is prohibited from alienating
the properties of the wife without her consent. Under the Family
Code, the rights of the spouses as to their respective exclusive
properties are respected. Hence, any of the spouses cannot alienate
the properties of the other spouse without the consent of the latter.
In fact, Article 111 of the Family Code provides that a spouse may
mortgage, encumber, alienate or otherwise dispose of his or her
exclusive property, without the consent of the other spouse, and
appear alone in court to litigate with regard to the same. Article
112 of the Family Code provides that the alienation of any exclusive
property of a spouse administered by the other automatically
terminates the administration over such property and the proceeds
of the alienation shall be turned over to the owner-spouse.
Article 389. The administration shall cease in
any of the following cases:
(1) When the absentee appears personally or
by means of an agent;
(2) When the death of the absentee is proved
and his testate or intestate heirs appear;
948
Art. 389
ABSENCE
Administration of the Property of the Absentee
949
(3) When a third person appears, showing by

a proper document that he has acquired the absentees property by purchase or other title.
In these cases, the administrator shall cease
in the performance of his ofce, and the property
shall be at the disposal of those who may have a
right thereto. (190)
APPEARANCE OF ABSENTEE. The purpose of appointing
an administrator is to protect the properties of the owner during
his or her absence. If the owner appears, the very reason for the
administrators appointment ceases. The owner must be allowed
to take care of his or her own property. This is true also if a duly
appointed agent of the owner appears. By the contract of agency, a
person binds himself to render some service or to do something in
representation or on behalf of another, with the consent or authority
of the latter (Article 1868 of the Civil Code).
DEATH. Upon the death of a person, the executor mentioned
in his or her will shall usually be appointed as the administrator
of his or her estate in accordance with the said decedents wishes
which must be pursuant to law. If he or she dies without a will,
intestate proceedings will be instituted where a new administrator
of his or her estate shall be appointed.
SUPERIOR INTEREST. The administrator must always act
within his or her mandate and authority. An administrator has no
right to administer property which does not belong to the owner.
Hence, if somebody presents any valid or authentic document
showing that the property being administered really belongs to
somebody else, the administration over such property shall and
must necessarily cease.
950
Chapter 4
PRESUMPTION OF DEATH
Article 390. After an absence of seven years, it
being unknown whether or not the absentee still
lives, he shall be presumed dead for all purposes,
except for those of succession.
The absentee shall not be presumed dead for
the purpose of opening his succession till after an
absence of ten years. If he disappeared after the
age of seventy-ve years, an absence of ve years
shall be sufcient in order that his succession may
be opened. (n)
Article 391. The following shall be presumed
dead for all purposes, including the division of the
estate among the heirs:
(1) A person on board a vessel lost during a
sea voyage, or an aeroplane which is missing, who
has not been heard of for four years since the loss
of the vessel or aeroplane;
(2) A person in the armed forces who has taken part in war, and has been missing for four years;
(3) A person who has been in danger of death
under other circumstances and his existence has
not been known for four years.
Article 392. If the absentee appears, or without
appearing his existence is proved, he shall recover
his property in the condition in which it may be
found, and the price of any property that may have
been alienated or the property acquired therewith;
but he cannot claim either fruits or rents. (194)
950
Arts. 390-392
ABSENCE
Presumption of Death
951
ABSENCE. The word absence in the rule that a presumption

of death is raised by the absence of a person from his domicile
when unheard of for seven years, means that a person is not at the
place of his domicile and his actual residence is unknown, and it is
for this reason that his existence is doubtful, and that, after seven
years of such absence, his death is presumed. But removal alone is
not enough (Gorham v. Settegast, 98 SW 655). Indeed, disappearance
from his domicile and from knowledge of those with whom he could
naturally communicate is necessary (Maley v. Pennsylvania R. Co.,
101 A. 911, 258 Pa. 73).
PRESUMPTION OF DEATH. Article 390 creates the presumption of death. Except for purposes of remarriage under Article
41 of the Family Code, there is no need for ling a case to declare
that one is presumptively dead. As held in the case of In re Szatraw,
81 Phil. 461:
This presumption may arise and be invoked and made in a
case, either in an action or in a special proceeding, which is tried
or heard by, and submitted for decision to, a competent court.
Neither is there a prayer for the nal determination of his right
or status or for the ascertainment of a particular fact (Hagan
v. Wislizenus, 42 Phil. 880), for the petition does not pray for
a declaration that the petitioners husband is dead, but merely
asks for a declaration that he be presumed dead because he had
been unheard from in seven years. If there is any pretense at
securing a declaration that the petitioners husband is dead,
such a pretension cannot be granted because it is unauthorized.
The petition is for a declaration that the petitioners husband
is presumptively dead. But this declaration, even if judicially
made, would not improve the petitioners situation, because
such a presumption is already established by law. A judicial
pronouncement to that effect, even if nal and executory, would
still be a prima facie presumption only. It is still disputable.
It is for that reason that it cannot be the subject of a judicial
pronouncement or declaration, if it is the only question or
matter involved in a case, or upon which a competent court has
to pass. The latter must decide nally the controversy between
the parties, or determine nally the right or status of a party
or establish nally a particular fact, out of which certain rights
and obligations arise or may arise; and one such controversy is
decided by a nal judgment, or such right or status determined,
or such particular fact established, by a nal decree, then the
judgment on the subject of controversy, or the decree upon the
right or status of a party or upon the existence of a particular
952
Arts. 390-392
fact becomes res judicata, subject to no collateral attack, except

in a few rare instances especially provided by law. It is therefore
clear that a judicial declaration that a person is presumptively
dead, because he had been unheard from in seven years, being a
presumption juris tantum only, subject to contrary proof, cannot
reach the stage of nality or become nal. Proof of actual death
of a person presumed dead because he had been unheard from
in seven years, would have to be made in another proceeding
to have such particular fact determined. If a judicial decree
declaring a person presumptively dead because he had not been
heard from in seven years cannot become nal and executory
even after the lapse of the reglementary period within which an
appeal may be taken, for such presumption is still disputable
and remains subject to contrary proof, then a petition for such a
declaration is useless, unnecessary, superuous and of no benet
to the petitioner. The Court should not waste its valuable time
and be made to perform a superuous and meaningless act.
PERIOD. For purposes of remarriage under Article 41 of the

Family Code, four consecutive years is enough for a person to be
judicially declared presumptively dead. For other purposes, there is
no need of a judicial declaration but the required period for one to
be presumed dead is seven years except for the opening succession.
In the latter case, an absence of 10 years is mandated by law except
when the person disappeared after the age of seventy-ve years in
which case an absence of ve years is enough. In these cases, the
person shall be presumed dead at the end of the seven-year period.
However, if the disappearance occurred under dangerous
circumstances as specied in Article 391, the period is shortened
to four years for all purposes including the division of the estate
among the heirs but excluding the situation under Article 41 of the
Family Code with respect to the present spouse wanting to remarry,
in which case a judicial declaration of presumptive death is needed
and the period is shortened to two years.
MISSING PERSON. Article 391 describes situations where a
person has been missing under dangerous circumstances. In this
regard, it has been held that Article 391 cannot apply to a person
who accidentally fell into the sea while on board a vessel and
consequently drowned. This is so because the vessel was not lost
during a sea voyage in such a particular case (Caltex v. Villanueva,
2 SCRA 897). In the same vein, therefore, if a person cannot be found
in a wreckage of an airplane which crashed, Article 391 will not
Arts. 390-392
ABSENCE
Presumption of Death
953
apply because the airplane is not missing. In case of Article 391(2),

the person subject of inquiry must have taken part in the war.
Relevantly, in case Article 391 is applicable in a particular situation,
it shall be presumed that the person died at the time when he was
last heard of and not at the end of the period.
954
Chapter 5
EFFECT OF ABSENCE UPON THE
CONTINGENT RIGHTS OF THE ABSENTEE
Article 393. Whoever claims a right pertaining
to a person whose existence is not recognized must
prove that he was living at the time his existence
was necessary in order to acquire said right. (195)
PROOF OF EXISTENCE. If a person is known to be dead and
there is a controversy as to the validity of a transaction or contract
allegedly entered into by him, the person claiming the validity
of the transaction, contract or obligation must prove that, at the
time it was entered into, the person who entered the contract or
incurred the obligation was alive. Also, if some right exists in favor
of a deceased and such right is sought to be enforced, the individual
seeking to enforce such right must prove that the right vested in
favor of the deceased while the latter was still living. Hence, if A
validly made a donation of a house to X to be given on January 5,
1990 and likewise promised to give another donation of a specic car
also to X in the event that X would still be alive by January 2, 1991
and if, after December 25, 1990, X was nowhere to be found the
heirs of X can claim that the car already belongs to X after January
2, 1991 by proving that X was alive on January 2, 1991.
Article 394. Without prejudice to the provisions of the preceding article, upon the opening of a
succession to which an absentee is called, his share
shall accrue to his co-heirs, unless he has heirs, assigns, or a representative. They shall all, as the case
may be, make an inventory of the property. (196a)
954
Arts. 395-396
ABSENCE
Effect of Absence Upon the Contingent Rights of the Absentee
955
ACCRETION. The disposition of the inheritance of an absentee

shall benet either his or her co-heirs or his or her own heirs, assigns
or representatives. For example, A and B are brothers. They are the
only heirs of their father. A has been judicially declared an absentee.
Thereafter, their father died without a last will and testament
leaving a net estate valued at P100,000. If A were not an absentee,
he will inherit P50,000 while B will likewise inherit P50,000.
Considering, however, that A is an absentee, his P50,000 shall
accrue to B who will therefore inherit the whole estate. However, if
A has children who are therefore his heirs, the said children shall
inherit the P50,000 which was supposed to go to A. The children will
inherit by their right of representation.
Article 395. The provisions of the preceding article are understood to be without prejudice to the
action or petition for inheritance or other rights
which are vested in the absentee, his representatives or successors in interest. This right shall not
be extinguished save by lapse of time xed for prescription. In the record that is made in the Registry
of the real estate which accrues to the co-heirs, the
circumstance of its being subject to the provisions
of this article shall be stated. (197)
CLAIM. In the event that the property supposed to be
inherited by the absentee accrues to the co-heirs, the title or record
of the said property in the proper registry of property shall have an
annotation stating that, within the prescriptive period provided by
law, the property can be subject to the claim of any person having
an interest in the said property especially the absentee, or his or her
representative or successors. If the said absentee reappears, he or
she has the right to le a petition to be able to get his or her rightful
inheritance from the said co-heirs. This right to claim the inheritance
by the absentee is also given to the absentees representatives or
successors. However, the absentee, his or her representatives or
successors must le the petition within the prescriptive period
provided by law.
Article 396. Those who may have entered upon
the inheritance shall appropriate the fruits received in good faith so long as the absentee does
not appear, or while his representatives or successors do not bring the proper actions. (198)
956
Art. 396
APPROPRIATION OF FRUITS. Anyone who obtains the

inheritance of the absentee in accordance with law can make
use or appropriate the fruits of the inheritance as long as they
are in good faith. However, if the absentee appears or his or her
representatives or successors already led a claim in court, those
who may have entered upon the inheritance cannot anymore make
such appropriation.
957
TITLE XVI. CIVIL REGISTRY

Article 407. Acts, events and judicial decrees
concerning the civil status of persons shall be recorded in the civil register. (325a)
DUTIES OF THE LOCAL CIVIL REGISTRAR. The Local
Civil Registrar in each city or municipality shall: (a) le registerable
certicates and documents presented to them for entry; (b) compile
the same monthly and prepare and send any information required
of them by the Civil Registrar General; (c) issue certied transcripts
or copies of any certicate or document registered, upon payment
of the proper fees; (d) order the binding, properly classied, of all
certicates or documents registered during the year; (e) send to the
Civil Registrar-General during the rst ten days of each month, a
copy of the entries made during the preceding month, for ling; (f)
index the same to facilitate search and identication in case any
information is required; and (g) administer oaths, free of charge, for
civil register purposes (Section 12 of the Civil Registry Law, Act No.
3753).
Article 408. The following shall be entered in
the civil register:
(1) Births; (2) marriages; (3) deaths; (4) legal
separations; (5) annulment of marriages; (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 liation; (15) voluntary emancipation of a minor; and
(16) changes of name. (326a)
Article 409. In cases of legal separation, adoption, naturalization and other judicial orders mentioned in the preceding article, it shall be the duty
957
958
Arts. 408-410
of the clerk of court which issued the decree to ascertain whether the same has been registered, and
if this has not been done, to send a copy of said decree to the civil registry of the city or municipality
where the court is functioning.
Article 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.
PUBLIC DOCUMENTS. The books making up the civil register
and all documents relating thereto shall be considered public
document (Article 409 of the Civil Code, Section 13 of Act No. 3753),
They shall be open to the public during ofce hours and shall be kept
in a suitable safe which shall be furnished to the local civil registrar
at the expense of the general fund of the municipality concerned.
The local civil registrar shall not under any circumstances permit
any document entrusted to his care to be removed from his ofce,
except by order of a court, in which case the proper receipt shall
be taken. The local civil registrar may issue certied copies of any
document led, upon payment of the proper fees required under the
law (Section 13 of the Civil Registry Law, Act No. 3753).
Unlike the ling of documents in the Registry of Deeds where
the law expressly provides that such ling is constructive notice to
all of the documents led therein (Section 52 of P.D. 1529), the Civil
Register Law does not provide for constructive notice to all persons
of any document led in the Ofce of the Local Civil Registrar or
Ofce of the Civil Registrar General (See Section 13 of Civil Register
Law Act No. 3753).
Thus, birth records, including a birth certicate, are strictly
condential and the contents therein cannot be revealed except
when obtained by those interested therein, namely: 1) the person
himself, or any person authorized by him or her; 2) his or her spouse,
his or her parent or parents, his or her direct descendants, or the
guardian or institution legally in charge of him or her if he or she
is a minor; 3) the court or proper public ofcial whenever absolutely
necessary in administrative, judicial or other ofcial proceedings to
determine the identity of the childs parents or other circumstances
surrounding his birth; and 4) in case of the persons death, the
nearest of kin (Article 7 of Presidential Decree No. 603 as amended,
otherwise known as The Child and Youth Welfare Code).
Arts. 408-410
CIVIL REGISTRY
959
PRIMA FACIE EVIDENCE. By prima facie evidence is meant

such proofs which, if remaining unrebutted or uncontradicted, is
sufcient to maintain the fact such evidence seeks to substantiate.
It creates a presumption of fact. (Malicden v. Republic, 12 SCRA
313):
In case of conict between a presumption of fact and a
presumption of law, the latter will prevail. Thus, even if the
record of birth states the name of a person as the father but
the child was born inside the valid marriage of the mother
with another man, the latter will be considered as the father
because of the presumption of law that a child born inside a
valid marriage is legitimate as to the spouses of that marriage
(Concepcion v. Court of Appeals, 468 SCRA 438).
Also, in Babiera v. Catotal, G.R. No. 138493, June 15, 2000,

where a legitimate child led a suit to cancel the birth certicate
of her housemaids child who claimed to be her sister and therefore
also the legitimate child of her parents and where it was proven that
the birth certicate of such housemaids child was forged to make it
appear that the said housemaids child was the child of the parents
of the legitimate child, the Supreme Court rejected the contention of
the housemaids child that the birth certicate must be considered
authentic considering that it enjoys the presumption of regularity in
its issuance. Pertinently, the Supreme Court said:
Lastly, petitioner argues that the evidence presented,
especially Hermogenas testimony that petitioner was not her
real child, cannot overcome the presumption of regularity in the
issuance of the Birth Certicate.
While it is true than an ofcial document such as petitioners
Birth Certicate enjoys the presumption of regularity, the
specic facts attendant to the case at bar, as well as the totality
of evidence presented during trial, sufciently negate such
presumption. First, there were already irregularities regarding
the Birth Certicate itself. It was not signed by the local civil
registrar. More important, the Court of Appeals observed that
the mothers signature therein was different from her signatures
in other documents presented during trial.
Second, the circumstances surrounding the birth of
petitioner show that Hermogena is not the formers real mother.
For one, there is no evidence of Hermogenas pregnancy, such as
medical records and doctors prescriptions, other than the Birth
Certicate itself. In fact, no witness was presented to attest to
960
Arts. 411-412
the pregnancy of Hermogena during that time. Moreover, at the

time of her supposed birth, Hermogena was already 54 years
old. Even if it were possible for her to have given birth at such
late age, it was highly suspicious that she did so in her own
home, when her advanced age necessitated proper medical care
normally available only in a hospital.
The most signicant piece of evidence, however, is the
deposition of Hermogena Babiera, which states that she did not
give birth to petitioner, and that the latter was neither hers nor
her husband Eugenios.
Article 411. Every civil registrar shall be

civilly responsible for any unauthorized alteration
made in any civil register, to any person suffering
damage thereby. However, the civil registrar may
exempt himself from such liability if he proves
that he has taken every reasonable precaution to
prevent the unlawful alteration.
Article 412. No entry in a civil register shall be
changed or corrected, without judicial order.
REPUBLIC ACT NUMBERED 9048. Article 412 has been
amended by Republic Act 9048. The complete text of the said act is
set out in the discussion under Article 376. Nevertheless, Republic
Act Number 9048, among others, also deals with corrections in the
civil registry which involve merely typographical or clerical errors
just like the concept in Article 412.
ADMINISTRATIVE OR JUDICIAL PROCEEDING. Except for
clerical or typographical errors or change in the name or nickname
of a person, a change in the entries in the civil register must always
pass through a judicial proceeding. Typographical and/or clerical
errors can be corrected administratively through the ofce of the
local civil registrar by ling the necessary veried petition by any
person having direct and personal interest in the correction (Section
3 of R.A. No. 9043). However, the resolution of the Ofce of the Local
Civil Registrar can be reviewed by the Ofce of the Civil Registrar
General and nally by the courts (Section 7 of R.A. No. 9048). The
proceeding may either be summary or adversarial. A clerical error
has been dened as one made in copying or writing (Yu v. Republic,
21 SCRA 1018).
Clerical or typographical error refers to a mistake
committed in the performance of clerical work in writing,
Arts. 411-412
CIVIL REGISTRY
961
copying, transcribing, or typing an entry in the civil registrar

that is harmless and innocuous, such as misspelled name or
misspelled place of birth or the like, which is visible to the
eyes or obvious to the understanding and can be corrected
or changed by reference to other existing record or records;
Provided, however, That no correction must involve the change
of nationality, age, status or sex of the petitioner (Section 2[3] of
R.A. No. 9043).
Examples of these errors are clearly misspelled name and occupation of parents (Alisoso v. Lastimoso, 14 SCRA 210). Thus, the
change of Sincio to Sencio, which merely involves the substitution of the rst vowel i in the rst name into the vowel e, merely
amounts to the righting of a clerical error (Yu v. Republic, 21 SCRA
1018).
The proceeding must be judicial and should be adversarial if
the changes involve substantial or controversial matters such as
those which involve a persons civil status, nationality or citizenship,
and liation of the offsprings of parents (Chug Siu v. Local Civil
Registrar, 20 SCRA 877; Ty Kong Tin v. Republic, 50 O.G. 1077,
cited in David v. Republic, 15 SCRA 439). These substantial and
controversial matters should be threshed out in an appropriate
court proceeding instituted for the purpose wherein the State and all
parties who may be affected by the entries are notied or represented
to the end that the case may be decided with due process of law and
on the basis of the facts proven (Chug Siu case, 20 SCRA 877; See
also Ansaldo v. Republic, 54 O.G. 5886).
With respect to a change which will, in effect, alter the status
of a person, for example from legitimate to illegitimate liation, the
general rule, as previously stated, is that such change cannot be
effectuated under Article 412 of the Civil Code.
RULE 108 OF THE RULES OF COURT. Rule 108 of the Rules
of Court provides for the procedural rules for the cancellation or
correction of entries in the civil registry. The procedure is as follows:
Section 1. Who may le petition. Any person interested
in any act, event, order or decree concerning the civil status of
persons which has been recorded in the civil register, may le
a veried petition for the cancellation or correction of any entry
relating thereto, with the Court of First Instance of the province
where the corresponding civil registry is located.
Section 2. Entries subject to cancellation or correction.
Upon good and valid grounds, the following entries in the civil
962
Arts. 411-412
register may be cancelled or corrected (same as Article 408 of

the Civil Code).
Section 3. Parties. When cancellation or correction of
an entry in the civil register is sought, the civil registrar and all
persons who have or claim any interest which would be affected
thereby shall be made parties to the proceeding.
Section 4. Notice and publication. Upon the ling of the
petition, the court shall, by an order, x the time and place for
the hearing of the same, and cause reasonable notice thereof to
be given to the persons named in the petition. The court shall
also cause the order to be published once a week for three (3)
consecutive weeks in a newspaper of general circulation in the
province.
Section 5. Opposition. The civil registrar and any
person having or claiming any interest under the entry whose
cancellation or correction is sought may, within fteen (15) days
from notice of the petition, or from the last date of publication of
such notice, le his opposition thereto.
Section 6. Expediting proceedings. The court in which
the proceeding is brought may make orders expediting the
proceedings, and may also grant preliminary injunction for
the preservation of the rights of the parties pending such
proceedings.
Section 7. Order. After hearing, the court may either
dismiss the petition or issue an order granting the cancellation
or correction prayed for. In either case, a certied copy of the
judgment shall be served upon the civil registrar concerned who
shall annotate the same in his record.
Before, it has been pronounced that Rule 108 deals with the
summary judicial proceeding referred to in Article 412 of the Civil
Code in connection with the changes of clerical and innocuous errors.
However, in Republic v. Valencia, 141 SCRA 462, it was held that if
all the procedural requirements under Rule 108 have been followed,
a petition for correction and/or cancellation of entries in the
record of birth even if led and conducted under Rule 108 of the
Revised Rules of Court can no longer be described as summary.
There can be no doubt that when an opposition to the petition
is led either by the Civil Registrar or any person having or
claiming any interest in the entries sought to be cancelled
and/or corrected and the opposition is actively prosecuted, the
proceedings thereon become adversary proceedings (Republic v.
Valencia, 141 SCRA 462).
Arts. 411-412
CIVIL REGISTRY
963
Thus, in the said case of Republic v. Valencia, 141 SCRA 462,

where the changes sought in the entries in a record of birth are the
following: 1) from Chinese to Filipino; and 2) from Legitimate to
Illegitimate, the Supreme Court ruled that, while the case was led
under Article 412 of the Civil Code which deals with only clerical
and innocuous errors which may be corrected by way of a summary
proceeding in court and while the fact that the changes sought
are not mere clerical errors but substantial ones which cannot be
corrected under Article 412, the changes can be allowed if all the
requirements under Rule 108 are fullled because in such case the
proceedings turned into an adversarial one which is the appropriate
judicial proceedings with respect to substantial changes in the
entries. The Supreme Court likewise stated:
Provided, the trial court has conducted proceedings where
all relevant facts have been fully and properly developed, where
opposing counsel have been given opportunity to demolish
the opposite partys case, and where the evidence has been
thoroughly weighed and considered, the suit or proceeding is
appropriate.
xxx
xxx
xxx
In the instant case, a petition for cancellation and/or

correction of entries of birth of Bernardo Go and Jessica Go in
the Civil Registry of the City of Cebu was led by respondent
Leonor Valencia on January 27, 1970, and pursuant to the order
of the trial court dated February 4, 1970, the said petition was
published once a week for three (3) consecutive weeks in the
Cebu Advocate, a newspaper of general circulation in the City of
Cebu. Notice thereof was duly served on the Solicitor General,
the Local Civil Registrar and Go Eng. The order likewise set
the case for hearing and directed the local civil registrar and
the other respondents or any person claiming any interest
under the entries whose corrections were sought, to le their
opposition to the said petition. An opposition to the petition
was consequently led by the Republic on February 26, 1970.
Thereafter, a full-blown trial followed, with respondent Leonor
Valencia testifying and presenting her documentary evidence in
support of her petition. The Republic on the other hand crossexamined respondent Leonor Valencia.
We are of the opinion that the petition led by the
respondent in the lower court by way of a special proceeding
for cancellation and/or correction of entries in the civil register
with the requisite notice and publication and the recorded
proceedings that actually took place thereafter could very well
be regarded as that proper suit or appropriate action.
964
Art. 413
Article 413. All other matters pertaining to the

registration of civil status shall be governed by special laws.
Act Numbered 3753, otherwise known as the Civil Registry
Law, provides for the registration of documents evidencing the
acquisition or termination of a particular civil status such as
legitimation, adoption, change of name, marriage, termination of
such marriage and others. They have been discussed in this book in
the appropriate chapters dealing with the relevant subjects.

Philippine Laws on Funerals and Children's Rights

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920

PERSONS AND FAMILY RELATIONS LAW

KINDS OF FUNERAL. The wishes of the deceased shall be

PERSONS AND FAMILY RELATIONS LAW

LIABILITY OF CONJUGAL PARTNERSHIP. If the deceased

TITLE XII. CARE AND EDUCATION

Article 356. Every child:

Is entitled to parental care;

Shall receive at least elementary educa-

Obey and honor his parents or guardian;

(2) Respect his grandparents, old relatives,

PERSONS AND FAMILY RELATIONS LAW

Article 359. The government promotes the full

Puericulture and similar centers;

Councils for the Protection of Children;

Article 360. The Council for the Protection of

Take steps to prevent juvenile delinquen-

Adopt measures for the health of children;

(6) Promote the opening and maintenance of

CARE AND EDUCATION OF CHILDREN

PERSONS AND FAMILY RELATIONS LAW

TITLE XIII. USE OF SURNAMES

PERSONS AND FAMILY RELATIONS LAW

Article 366. A natural child acknowledged by

(2) Her maiden rst name and her husbands

PERSONS AND FAMILY RELATIONS LAW

Article 371. In case of annulment of marriage,

The court decrees otherwise, or

(2) She or the former husband is married

IDENTITY OF NAMES. So that confusion can be prevented,

Add the Roman numerals II, III, and so

PERSONS AND FAMILY RELATIONS LAW

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

The change will avoid confusion.

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

PERSONS AND FAMILY RELATIONS LAW

The petition shall be supported with the following

The error is not clerical or typographical;

(2) The correction of an entry or entries in the civil

PERSONS AND FAMILY RELATIONS LAW

CHANGE OF NAME AND SURNAME. A change of name is

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

PERSONS AND FAMILY RELATIONS LAW

should belong the primordial choice of what courses of action to

In a case where a divorced woman subsequently remarried

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

However, in a subsequent case, the Supreme Court allowed

PERSONS AND FAMILY RELATIONS LAW

EFFECT OF CHANGE OF NAME. A change of name does not

NATURE OF PROCEEDINGS. The procedure for change of

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

The name asked for.

Section 3. Order for hearing. If the petition led is

PERSONS AND FAMILY RELATIONS LAW

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

Article 379. The employment of pen names or

PERSONS AND FAMILY RELATIONS LAW

TITLE XIV. ABSENCE

spouse must likewise le an application for appointment with the

PERSONS AND FAMILY RELATIONS LAW

The spouse present;

(2) The heirs instituted in a will, who may