REPUBLIC OF THE PHILIPPINES, petitioner, vs. THE HON.

COURT
OF APPEALS (Twentieth Division), HON. PRESIDING JUDGE
FORTUNITO L. MADRONA, RTC-BR. 35 and APOLINARIA
MALINAO JOMOC, respondents.
DECISION
CARPIO-MORALES, J.:
In In the Matter of Declaration of Presumptive Death of Absentee
Spouse Clemente P. Jomoc, Apolinaria Malinao Jomoc, petitioner, the
Ormoc City, Regional Trial Court, Branch 35, by Order of September 29,
1999,[1] granted the petition on the basis of the Commissioners
Report[2] and accordingly declared the absentee spouse, who had left
his petitioner-wife nine years earlier, presumptively dead.
In granting the petition, the trial judge, Judge Fortunito L. Madrona,
cited Article 41, par. 2 of the Family Code. Said article provides that for
the purpose of contracting a valid subsequent marriage during the
subsistence of a previous marriage where the prior spouse had been
absent for four consecutive years, the spouse present must institute
summary proceedings for the declaration of presumptive death of the
absentee spouse, without prejudice to the effect of the reappearance
of the absent spouse.
The Republic, through the Office of the Solicitor General, sought to
appeal the trial courts order by filing a Notice of Appeal.[3]
By Order of November 22, 1999s,[4] the trial court, noting that no
record of appeal was filed and served as required by and pursuant to
Sec. 2(a), Rule 41 of the 1997 Rules of Civil Procedure, the present
case being a special proceeding, disapproved the Notice of Appeal.
The Republics Motion for Reconsideration of the trial courts order of
disapproval having been denied by Order of January 13, 2000,[5] it
filed a Petition for Certiorari[6] before the Court of Appeals, it
contending that the declaration of presumptive death of a person
under Article 41 of the Family Code is not a special proceeding or a
case of multiple or separate appeals requiring a record on appeal.
By Decision of May 5, 2004,[7] the Court of Appeals denied the
Republics petition on procedural and substantive grounds in this wise:
At the outset, it must be stressed that the petition is not sufficient in
form. It failed to attach to its petition a certified true copy of the
assailed Order dated January 13, 2000 [denying its Motion for
Reconsideration of the November 22, 1999 Order disapproving its
Notice of Appeal]. Moreover, the petition questioned the [trial courts]

Order dated August 15, 1999, which declared Clemente Jomoc

presumptively dead, likewise for having been issued with grave abuse
of discretion amounting to lack of jurisdiction, yet, not even a copy
could be found in the records. On this score alone, the petition should
have been dismissed outright in accordance with Sec. 3, Rule 46 of the
Rules of Court.
However, despite the procedural lapses, the Court resolves to delve
deeper into the substantive issue of the validity/nullity of the assailed
order.
The principal issue in this case is whether a petition for declaration of
the presumptive death of a person is in the nature of a special
proceeding. If it is, the period to appeal is 30 days and the party
appealing must, in addition to a notice of appeal, file with the trial
court a record on appeal to perfect its appeal. Otherwise, if the petition
is an ordinary action, the period to appeal is 15 days from notice or
decision or final order appealed from and the appeal is perfected by
filing a notice of appeal (Section 3, Rule 41, Rules of Court).
As defined in Section 3(a), Rule 1 of the Rules of Court, a civil action is
one by which a party sues another for the enforcement or protection of
a right, or the prevention of redress of a wrong while a special
proceeding under Section 3(c) of the same rule is defined as a remedy
by which a party seeks to establish a status, a right or a particular fact
(Heirs of Yaptinchay, et al. v. Del Rosario, et al., G.R. No. 124320, March
2, 1999).
Considering the aforementioned distinction, this Court finds that the
instant petition is in the nature of a special proceeding and not an
ordinary action. The petition merely seeks for a declaration by the trial
court of the presumptive death of absentee spouse Clemente Jomoc. It
does not seek the enforcement or protection of a right or the
prevention or redress of a wrong. Neither does it involve a demand of
right or a cause of action that can be enforced against any person.
On the basis of the foregoing discussion, the subject Order dated
January 13, 2000 denying OSGs Motion for Reconsideration of the
Order dated November 22, 1999 disapproving its Notice of Appeal was
correctly issued. The instant petition, being in the nature of a special
proceeding, OSG should have filed, in addition to its Notice of Appeal, a
record on appeal in accordance with Section 19 of the Interim Rules
and Guidelines to Implement BP Blg. 129 and Section 2(a), Rule 41 of
the Rules of Court . . . (Emphasis and underscoring supplied)

The Republic (petitioner) insists that the declaration of presumptive

death under Article 41 of the Family Code is not a special proceeding
involving multiple or separate appeals where a record on appeal shall
be filed and served in like manner.
Petitioner cites Rule 109 of the Revised Rules of Court which
enumerates the cases wherein multiple appeals are allowed and a
record on appeal is required for an appeal to be perfected. The petition
for the declaration of presumptive death of an absent spouse not being
included in the enumeration, petitioner contends that a mere notice of
appeal suffices.
By Resolution of December 15, 2004,[8] this Court, noting that copy of
the September 27, 2004 Resolution[9] requiring respondent to file her
comment on the petition was returned unserved with postmasters
notation Party refused, Resolved to consider that copy deemed served
upon her.
The pertinent provisions on the General Provisions on Special
Proceedings, Part II of the Revised Rules of Court entitled SPECIAL
PROCEEDINGS, read:
RULE 72
SUBJECT MATTER AND APPLICABILITY
OF GENERAL RULES
Section 1. Subject matter of special proceedings. Rules of special
proceedings are provided for in the following:
(a) Settlement of estate of deceased persons;
(b) Escheat;
(c) Guardianship and custody of children;
(d) Trustees;
(e) Adoption;
(f) Rescission and revocation of adoption;
(g) Hospitalization of insane persons;
(h) Habeas corpus;
(i) Change of name;
(j) Voluntary dissolution of corporations;
(k) Judicial approval of voluntary recognition of minor natural children;
(l) Constitution of family home;
(m) Declaration of absence and death;
(n) Cancellation or correction of entries in the civil registry.

Sec. 2. Applicability of rules of civil actions. In the absence of special

provisions, the rules provided for in ordinary actions shall be, as far as
practicable, applicable in special proceedings. (Underscoring supplied)
The 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 wellfounded 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)
xxx
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 hereby repealed, (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 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,
petitioners 8-page petition[10] filed in said court does not so reflect, it
merely having assailed the order disapproving the Notice of Appeal.
WHEREFORE, the assailed May 5, 2004 Decision of the Court of
Appeals is hereby REVERSED and SET ASIDE. Let the case be
REMANDED to it for appropriate action in light of the foregoing
discussion.
SO ORDERED.
REPUBLIC OF THE PHILIPPINES, petitioner, vs. GLORIA
BERMUDEZ-LORINO, respondent.
DECISION
GARCIA, J.:
Via this petition for review on certiorari under Rule 45 of the Rules of
Court, petitioner Republic of the Philippines, represented by the Office
of the Solicitor General (OSG), seeks the reversal and setting aside of
the decision dated September 23, 2003 of the Court of Appeals in CAG.R. CV No. 73884, which affirmed on appeal an earlier decision of the
Regional Trial Court (RTC) at San Mateo, Rizal in a summary judicial
proceeding thereat commenced by the herein respondent Gloria
Bermudez-Lorino for the declaration of the presumptive death of her
absent spouse, Francisco Lorino, Jr., based on the provisions of Article
41 of the Family Code, for purposes of remarriage.
The facts may be summarized, as follows:
Respondent Gloria Bermudez-Lorino (Gloria for brevity), and her
husband were married on June 12, 1987. Out of this marriage, she
begot three (3) children, namely: Francis Jeno, Fria Lou and Fatima.
Before they got married in 1987, Gloria was unaware that her husband
was a habitual drinker, possessed with violent character/attitude, and

had the propensity to go out with friends to the extent of being unable
to engage in any gainful work.
Because of her husbands violent character, Gloria found it safer to
leave him behind and decided to go back to her parents together with
her three (3) children. In order to support the children, Gloria was
compelled to work abroad.
From the time of her physical separation from her husband in 1991,
Gloria has not heard of him at all. She had absolutely no
communications with him, or with any of his relatives.
On August 14, 2000, nine (9) years after she left her husband, Gloria
filed a verified petition with the Regional Trial Court (RTC) at San
Mateo, Rizal under the rules on Summary Judicial Proceedings in the
Family Law provided for in the Family Code, which petition was
docketed in the same court as Special Proceeding No. 325-00 SM.
On August 28, 2000, the RTC issued an order directing, inter alia, the
publication of the petition in a newspaper of general circulation, thus:
A verified petition was filed by herein petitioner through counsel
alleging that she married Francisco Lorino, Jr. on June 12, 1987 but
because of the violent character of his husband, she decided to go
back to her parents and lived separately from her husband. After nine
(9) years, there was absolutely no news about him and she believes
that he is already dead and is now seeking through this petition for a
Court declaration that her husband is judicially presumed dead for the
purpose of remarriage.
Finding the said petition to be sufficient in form and substance, the
same is hereby set for hearing before this Court on September 18,
2000 at 8:30 oclock in the morning at which place, date and time, any
or all persons who may claim any interest thereto may appear and
show cause why the same should not be granted.
Let a copy of this Order be published in a newspaper of general
circulation in this province once a week for three (3) consecutive weeks
and be posted in the bulletin boards of the Hall of Justice and the
Municipal Hall, San Mateo, Rizal, all at the expense of the petitioner.
Furnish the Office of the Solicitor General a copy of this Order together
with a copy of the petition. Further, send a copy of this Order to the
last known address of Francisco Lorino, Jr. at 719 Burgos St., Sta. Elena,
Marikina City.

SO ORDERED[1]
The evidence in support of the summary judicial proceeding are: the
order of publication dated August 28, 2000 (Exhibit A); affidavit of
publication dated September 16, 2000 (Exhibit B)[2]; copies of the
newspapers where the order appeared (Exhibits C to E-1)[3]; a
deposition dated September 4, 2000 of Gloria taken in Hong Kong
(Exhibit G)[4]; Glorias affidavit dated October 21, 1999, also executed
in Hong Kong (Exhibit G-1)[5]; and a certification by Department of
Foreign Affairs Authentication Officer, Catalina C. Gonzalez, dated
November 3, 1999, therein certifying that the signature of Vice Consul
Adriane Bernie C. Candolada, appearing below the jurat in Glorias
affidavit of October 21, 1999, is authentic (Exhibit G-2)[6].
In a decision dated November 7, 2001, the RTC, finding merit in the
summary petition, rendered judgment granting the same, to wit:
WHEREFORE, this Court in view of the facts and circumstances
obtaining, finds the petition with merit and hereby grants its
imprimatur to the petition. Judgment is hereby rendered declaring the
presumptive death/absence of Francisco Lorino, Jr. pursuant to Art. 41
of the New Family Code but subject to all restrictions and conditions
provided therein.
SO ORDERED.[7]
Despite the judgment being immediately final and executory under the
provisions of Article 247 of the Family Code, thus:
Art. 247. The judgment of the court shall be immediately final and
executory,
the Office of the Solicitor General, for the Republic of the Philippines,
nevertheless filed a Notice of Appeal.[8] Acting thereon, the RTC had
the records elevated to the Court of Appeals which docketed the case
as CA-G.R. CV No. 73884.
In a decision dated September 23, 2003, the Court of Appeals, treating
the case as an ordinary appealed case under Rule 41 of the Revised
Rules on Civil Procedure, denied the Republics appeal and accordingly
affirmed the appealed RTC decision:
WHEREFORE, based on the foregoing premises, the instant appeal is
DENIED. Accordingly, the appealed November 7, 2001 Decision of the
Regional Trial Court of San Mateo, Rizal in Spec. Proc. No. 325-00 SM is
hereby AFFIRMED.

SO ORDERED.[9]
Without filing any motion for reconsideration, petitioner Republic
directly went to this Court via the instant recourse under Rule 45,
maintaining that the petition raises a pure question of law that does
not require prior filing of a motion for reconsideration.
The foregoing factual antecedents present to this Court the following
issues:
WHETHER OR NOT THE COURT OF APPEALS DULY ACQUIRED
JURISDICTION OVER THE APPEAL ON A FINAL AND EXECUTORY
JUDGMENT OF THE REGIONAL TRIAL COURT; and
WHETHER OR NOT THE FACTUAL AND LEGAL BASES FOR A JUDICIAL
DECLARATION OF PRESUMPTIVE DEATH UNDER ARTICLE 41 OF THE
FAMILY CODE WERE DULY ESTABLISHED IN THIS CASE.
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 Veloria vs. Comelec,[11] 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, as we have held in Nacuray vs. NLRC:[12]
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 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.
WHEREFORE, the instant petition is hereby DENIED for lack of merit. No
pronouncement as to costs.
SO ORDERED.
REPUBLIC OF THE PHILIPPINES,
Petitioner,
- versus FERVENTINO U. TANGO,
Respondent.
G.R. No. 161062
DECISION
QUISUMBING, J.:
This is a petition for review on certiorari of the Decision[1] dated
November 28, 2003 of the Court of Appeals in CA-G.R. CV No. 76387
which denied the Republics appeal from the Order[2] dated July 23,
2002 of the Regional Trial Court (RTC) of Ligao City, Branch 11 in
Special Proceeding No. 357. The trial court had declared the wife of
respondent Ferventino U. Tango (Ferventino), Maria Jose Villarba
(Maria), presumptively dead under Article 41[3] of the Family Code.
The present controversy arose from the following facts:
On March 9, 1987, Ferventino and Maria were married[4] in civil rites
before then Mayor Ignacio Bunye of Muntinlupa City. None of Marias
relatives witnessed the ceremony as they were opposed to her
relationship with Ferventino. The two had only spent a night together
and had been intimate once when Maria told Ferventino that she and

her family will soon be leaving for the United States of America (USA).
Maria assured Ferventino, however, that she will file a petition so he
can live with her in the USA. In the event that said petition is denied,
she promised to return to the Philippines to live with him. On March 13,
1987, Maria and her family flew to Seattle, USA.
Ferventino alleges that Maria kept in touch for a year before she
stopped responding to his letters. Out of resentment, he burned all the
letters Maria wrote him. He claims to have forgotten her address since.
Ferventino recounts the efforts he made to find Maria. Upon inquiry
from the latters uncle, Antonio Ledesma, in Las Pias, Ferventino
learned that even Marias relatives were unaware of her whereabouts.
He also solicited the assistance of a friend in Texas, Capt. Luis Aris of
the U.S. Air Force, but to no avail. Finally, he sought the aid of his
parents Antonio and Eusebia in Los Angeles, and his aunt Anita CastroMayor in Seattle. Like, Ledesma though, their attempts to find Maria
proved fruitless. The next 14 years went by without any news of Maria.
On the belief that his wife had died, Ferventino filed a verified
petition[5] dated October 1, 2001 before the Ligao City RTC for the
declaration of presumptive death of Maria within the contemplation of
Article 41 of the Family Code.
When the case was called for initial hearing on January 8, 2002,
nobody entered any opposition. On July 22, 2002, Ferventino presented
evidence ex parte and testified in court about the details of his search.
On July 23, 2002, Branch 11 of the Ligao City RTC issued an Order, the
dispositive portion of which reads as follows:
WHEREFORE, judgment is hereby rendered, declaring MARIA JOSE V.
VILLARBA, wife of FERVENTINO U. TANGO, presumptively dead within
the meaning of Article 41 of the Family Code.
SO ORDERED. [6]
This prompted the Office of the Solicitor General (OSG), for the
Republic, to file a Notice of Appeal.[7] Acting thereon, Presiding Judge
Romulo SG. Villanueva of the Ligao City RTC had the records of the
case transmitted to the Court of Appeals.
The Court of Appeals, treating the case as an ordinary appealed case
under Rule 41 of the Rules of Court, affirmed the RTCs Order. It held
that Marias absence for 14 years without information about her
location despite diligent search by Ferventino was sufficient to support
a well-founded belief of her death. The appellate court observed that
neither the OSG nor the Assistant Provincial Prosecutor objected to the
evidence which Ferventino presented on trial. It noted, in particular,
that the OSG did not dispute the adequacy of Ferventinos basis to
engender a well-founded belief that Maria is dead. Hence, in a Decision
dated November 28, 2003, the Court of Appeals denied the Republics
appeal in this tenor:

WHEREFORE, the appeal is hereby DENIED. Accordingly, the July 23,

2002 Order of the Regional Trial Court of Ligao City, Branch 11 in Spec.
Proc. No. 357 is AFFIRMED.
SO ORDERED.[8]
Before us, petitioner anchors this petition for review on certiorari on
the following two grounds:
I.
THE TESTIMONY OF RESPONDENT ON THE ALLEGED EFFORTS MADE BY
HIS FRIEND AND RELATIVES IN LOCATING HIS MISSING WIFE IN
SEATTLE, UNITED STATES, IS HEARSAY AND DEVOID OF PROBATIVE
VALUE[; AND]
II.
EVEN ASSUMING THAT THE AFORESAID TESTIMONY MAY BE
CONSIDERED IN EVIDENCE, THE ALLEGED EFFORTS OF RESPONDENTS
FRIEND AND RELATIVES IN LOCATING HIS MISSING WIFE IN SEATTLE,
UNITED STATES, DO NOT SUFFICIENTLY SUPPORT A WELL-FOUNDED
BELIEF THAT RESPONDENTS ABSENT SPOUSE IS PROBABLY DEAD.[9]
Unadorned, the issues for our determination are: (1) whether the
testimony of respondent Ferventino is hearsay; and (2) whether
respondent Ferventino has established a basis to form a well-founded
belief that his absent spouse is already dead.
The Republic, through the OSG, contests the appellate courts holding
that the absence of respondents wife Maria for 14 years provides
sufficient basis to entertain a well-founded belief that she is dead. The
OSG discounts respondents testimony, on the steps he took to find
Maria, as hearsay because none of the persons who purportedly helped
in his search testified in court. Notably, the OSG observes that only
Capt. Aris gave a detailed account of his efforts to track down Maria.
According to Capt. Aris, he went over the Seattle phone directory for
Marias name and inquired about her from the registrars office in
Seattle, but both efforts proved to be in vain.
The OSG belittles its failure to object to the admissibility of
respondents testimony during trial. Instead, it invokes Constitutional
provisions that advocate the state policy of preserving marital
institutions.
On March 16, 2007, respondents counsel, Atty. Richie R. Regala,
manifested to this Court his intent to withdraw as counsel for
respondent. According to Atty. Regala, he received a letter by which
respondent expressed a desire to withdraw from the proceeding.[10] In
view of this, the Court issued a Resolution[11] on April 21, 2008 which
deemed as waived the filing of respondents comment on the petition.
Previously, the Court of Appeals had also issued a Resolution[12] dated
October 15, 2003 submitting the case for decision and ordering its reraffling for respondents failure to file an appellees brief. In other words,
apart from the verified petition for the declaration of presumptive

death of Maria dated October 1, 2001, which respondent filed before

the Ligao City RTC, he has not submitted any other pleading in
connection with the petition.
Respondents apparent lack of desire to pursue the proceedings
notwithstanding, the Court is inclined to rule against the Republic.
This case presents an opportunity for us to settle the rule on appeal of
judgments rendered in summary proceedings under the Family Code
and accordingly, refine our previous decisions thereon.
Article 238 of the Family Code, under Title XI: SUMMARY JUDICIAL
PROCEEDINGS IN THE FAMILY LAW, establishes the rules that govern
summary court proceedings in the Family Code:
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.
In turn, Article 253 of the Family Code specifies the cases covered by
the rules in chapters two and three of the same title. It states:
ART. 253. The foregoing rules in Chapters 2 and 3 hereof shall likewise
govern summary proceedings filed under Articles 41, 51, 69, 73, 96,
124 and 217, insofar as they are applicable. (Emphasis supplied.)
In plain text, Article 247 in Chapter 2 of the same title reads:
ART 247. The judgment of the court shall be immediately final and
executory.
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.[13] 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.[14]
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.[15]
Before us, petitioner filed a petition for review on certiorari under Rule
45 of the Rules of Court. But, even if petitioner used the correct mode
of appeal at this level, the hands of the Court are tied. Without a doubt,
the decision of the trial court had long become final.
Deeply ingrained in our jurisprudence is the principle that a decision
that has acquired finality becomes immutable and unalterable. As
such, it may no longer be modified in any respect even if the
modification is meant to correct erroneous conclusions of fact or law
and whether it will be made by the court that rendered it or by the
highest court of the land.[16] In light of the foregoing, it would be
unnecessary, if not useless, to discuss the issues raised by petitioner.
The doctrine of finality of judgment is grounded on the fundamental
principle of public policy and sound practice that, at the risk of
occasional error, the judgment of courts and the award of quasi-judicial
agencies must become final on some definite date fixed by law. The
only exceptions to the general rule are the correction of clerical errors,
the so-called nunc pro tunc entries which cause no prejudice to any
party, void judgments, and whenever circumstances transpire after the
finality of the decision which render its execution unjust and
inequitable.[17] None of the exceptions obtains here to merit the
review sought.
WHEREFORE the instant petition is DENIED for lack of merit. No
pronouncement as to costs.
SO ORDERED.
REPUBLIC OF THE PHILIPPINES, petitioner, vs. COURT OF
APPEALS and CYNTHIA VICENCIO, respondents.
DECISION
QUISUMBING, J.:
This is an appeal interposed by the Republic of the Philippines as
represented by the Office of the Solicitor General (OSG), assailing the
decision[1] of the Court of Appeals promulgated on April 28, 1989,
which affirmed the decision[2] of the Regional Trial Court of Manila,
Branch 52, dated, August 31, 1987. The appealed decision granted
private respondent Cynthia Vicencios petition for change of surname,
from Vicencio to Yu.

As found by the trial court, hereunder are the facts and circumstances
of the case:
Petitioners evidence is to the effect that she was born on 19 January
1971 at the Capitol Medical Center, Quezon City, to the spouses Pablo
Castro Vicencio and Fe Esperanza de Vega Leabres (Exh. C, also
marked Annex A of Petition); that on 10 January 1972, after a marital
spat, Pablo Vicencio left their conjugal abode then situated at
Meycauayan, Bulacan; that since then Pablo Vicencio never reappeared
nor sent support to his family and it was Ernesto Yu who had come to
the aid of Fe Esperanza Labres (sic) and her children; that on 29 June
1976, Fe Esperanza Leabres filed a petition in the then Juvenile and
Domestic Relations Court of Manila for dissolution of their conjugal
partnership, Civil Case No. E-02009, which was granted in a decision
rendered by the Hon. Regina C. Ordoez Benitez on 11 July 1977 (Exhs.
D, D-1 to D-3); that sometime in 1983, petitioners mother filed another
petition for change of name, Sp. Proc. No. 83-16346, that is to drop the
surname of her husband therefrom, and after hearing a decision was
rendered on 5 July 1983 by the Hon. Emeterio C. Cui of Branch XXV of
this Court approving the petition (Exh. E); that in 1984, petitioners
mother again filed another petition with this Court, Sp. Proc. No. 8422605, for the declaration of Pablo Vicencio as an absentee, and which
petition was granted on 26 April 1984 in a decision rendered by the
Hon. Corona Ibay-Somera (Exh. F & F-1); that on 15 April 1986,
petitioners mother and Ernesto Yu were joined in matrimony in a
ceremony solemnized by Mayor Benjamin S. Abalos of Mandaluyong,
Metro Manila (Exh. G).
It was also established that evern (sic) since her childhood, petitioner
had not known much less remembered her real father Pablo Vicencio,
and her known father had been and still is Ernesto Yu; that despite of
which she had been using the family name Vicencio in her school and
other related activities therein; that in view of such situation, confusion
arose as to her parentage and she had been subjected to inquiries why
she is using Vicencio as her family name, both by her classmates and
their neighbors, causing her extreme embarrassment; that on two (2)
occassions when she ran as a beauty contestant in a Lions Club affair
and in a Manila Red Cross pageant, her name was entered as Cynthia
L. Yu; that her step-father had been priorly consulted about this
petition and had given his consent thereto; that in fact Ernesto Yu
testified for petitioner and confirmed his consent to the petition as he
had always treated petitioner as his own daughter ever since.[3]
At the hearing of the petition for change of name by the trial court, the
OSG manifested that it was opposing the petition. It participated in the

proceedings by cross-examining the private respondent Cynthia

Vicencio, (petitioner a quo) and her witnesses.
Disregarding the OSGs contention, the trial court ruled that there is no
valid cause for denying the petition. Further, the trial court stated that
it could not compel private respondents step-father to adopt her, as
adoption is a voluntary act; but failure to resort to adoption should not
be a cause for disallowing private respondent to legally change her
name.[4] Hence, it granted the change of surname of private
respondent from Vicencio to Yu.
The decision of the trial court was affirmed by the appellate court,
which held that it is for the best interest of petitioner that her surname
be changed. The appellate court took into account the testimonies of
private respondent and her witnesses that allowing the change of
surname would give her an opportunity to improve her personality and
welfare.[5] It likewise noted that the discrepancy between her original
surname, taken from her biological father; and the surname of her
step-father, who has been socially recognized as her father, caused her
embarrassment and inferiority complex.[6]
The main issue before us is whether the appellate court erred in
affirming the trial courts decision allowing the change of private
respondents surname to that of her step-fathers surname.
In Republic vs. Hernandez[7], 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 step-father, 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
debut at the Manila Hotel.[8]
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 by
adoption, he has not opted for such a remedy.[9]
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 change is sought.[10] 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
surnames[11], specifically the law which requires that legitimate
children shall principally use the surname of their father[12].
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 shown.[13]
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 step-fathers 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. Republic,[14] and Llaneta vs. Agrava,[15] 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. Republic,[16] 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 which we cannot at present overlook or
brush aside.[17]
Similarly in Padilla vs. Republic,[18] the Court ruled that:
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 status into
discredit.[19]
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 6809,[20] 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.

WHEREFORE, the appealed decision is hereby REVERSED and SET

ASIDE; and the instant petition is hereby GRANTED.
SO ORDERED.
IN RE: PETITION FOR CHANGE OF NAME AND/OR
CORRECTION/CANCELLATION OF ENTRY IN CIVIL REGISTRY OF
JULIAN LIN CARULASAN WANG also known as JULIAN LIN WANG,
to be amended/corrected as JULIAN LIN WANG, JULIAN LIN
WANG, duly represented by his mother ANNA LISA WANG,
petitioner, vs. CEBU CITY CIVIL REGISTRAR, duly represented
by the Registrar OSCAR B. MOLO, respondent.
DECISION
TINGA, J.:
I will not blot out his name out of the book of life.
Revelation 3:5
On 22 September 2002, petitioner Julian Lin Carulasan Wang, a minor,
represented by his mother Anna Lisa Wang, filed a petition dated 19
September 2002 for change of name and/or correction/cancellation of
entry in the Civil Registry of Julian Lin Carulasan Wang. Petitioner
sought to drop his middle name and have his registered name changed
from Julian Lin Carulasan Wang to Julian Lin Wang.
The petition was docketed as Special Proceedings Case No. 11458 CEB
and raffled to the Regional Trial Court (RTC) of Cebu City, Branch 57.
The RTC established the following facts:
Julian Lin Carulasan Wang was born in Cebu City on February 20, 1998
to parents Anna Lisa Wang and Sing-Foe Wang who were then not yet
married to each other. When his parents subsequently got married on
September 22, 1998, ...they executed a deed of legitimation of their
son so that the childs name was changed from Julian Lin Carulasan to
Julian Lin Carulasan Wang.
The parents of Julian Lin Carulasan Wang plan to stay in Singapore for
a long time because they will let him study there together with his
sister named Wang Mei Jasmine who was born in Singapore. Since in
Singapore middle names or the maiden surname of the mother are not
carried in a persons name, they anticipate that Julian Lin Carulasan
Wang will be discriminated against because of his current registered
name which carries a middle name. Julian and his sister might also be

asking whether they are brother and sister since they have different
surnames. Carulasan sounds funny in Singapores Mandarin language
since they do not have the letter R but if there is, they pronounce it as
L. It is for these reasons that the name of Julian Lin Carulasan Wang is
requested to be changed to Julian Lin Wang.[1]
On 30 April 2003, the RTC rendered a decision denying the petition.[2]
The trial court found that the reason given for the change of name
sought in the petitionthat is, that petitioner Julian may be
discriminated against when studies in Singapore because of his middle
namedid not fall within the grounds recognized by law. The trial court
ruled that the change sought is merely for the convenience of the
child. Since the State has an interest in the name of a person, names
cannot be changed to suit the convenience of the bearers. Under
Article 174 of the Family Code, legitimate children have the right to
bear the surnames of the father and the mother, and there is no
reason why this right should now be taken from petitioner Julian,
considering that he is still a minor. The trial court added that when
petitioner Julian reaches the age of majority, he could then decide
whether he will change his name by dropping his middle name.[3]
Petitioner filed a motion for reconsideration of the decision but this was
denied in a resolution dated 20 May 2004.[4] The trial court
maintained that the Singaporean practice of not carrying a middle
name does not justify the dropping of the middle name of a legitimate
Filipino child who intends to study there. The dropping of the middle
name would be tantamount to giving due recognition to or application
of the laws of Singapore instead of Philippine law which is controlling.
That the change of name would not prejudice public interest or would
not be for a fraudulent purpose would not suffice to grant the petition if
the reason for the change of name is itself not reasonable.[5]
Petitioner then filed this Petition for Review on Certiorari (Under Rule
45)[6] arguing that the trial court has decided a question of substance
not theretofore determined by the Court, that is: whether or not
dropping the middle name of a minor child is contrary to Article 174[7]
of the Family Code. Petitioner contends that [W]ith globalization and
mixed marriages, there is a need for the Supreme Court to rule on the
matter of dropping of family name for a child to adjust to his new
environment, for consistency and harmony among siblings, taking into
consideration the best interest of the child.[8] It is argued that
convenience of the child is a valid reason for changing the name as
long as it will not prejudice the State and others. Petitioner points out
that the middle name Carulasan will cause him undue embarrassment
and the difficulty in writing or pronouncing it will be an obstacle to his
social acceptance and integration in the Singaporean community.

Petitioner also alleges that it is error for the trial court to have denied
the petition for change of name until he had reached the age of
majority for him to decide the name to use, contrary to previous
cases[9] decided by this Court that allowed a minor to petition for
change of name.[10]
The Court required the Office of the Solicitor General (OSG) to
comment on the petition. The OSG filed its Comment[11] positing that
the trial court correctly denied the petition for change of name. The
OSG argues that under Article 174 of the Family Code, legitimate
children have the right to bear the surnames of their father and
mother, and such right cannot be denied by the mere expedient of
dropping the same. According to the OSG, there is also no showing that
the dropping of the middle name Carulasan is in the best interest of
petitioner, since mere convenience is not sufficient to support a
petition for change of name and/or cancellation of entry.[12] The OSG
also adds that the petitioner has not shown any compelling reason to
justify the change of name or the dropping of the middle name, for that
matter. Petitioners allegation that the continued use of the middle
name may result in confusion and difficulty is allegedly more imaginary
than real. The OSG reiterates its argument raised before the trial court
that the dropping of the childs middle name could only trigger much
deeper inquiries regarding the true parentage of petitioner. Hence,
while petitioner Julian has a sister named Jasmine Wei Wang, there is
no confusion since both use the surname of their father, Wang. Even
assuming that it is customary in Singapore to drop the middle name, it
has also not been shown that the use of such middle name is actually
proscribed by Singaporean law.[13]
We affirm the decision of the trial court. The petition should be denied.
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. Otherwise, the request should be denied.[14]
The touchstone for the grant of a change of name is that there be
proper and reasonable cause for which the change is sought.[15] 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 change of name would
prejudice public interest.[16]
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 lodged in the courts.[17]
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 requests for change of the given name[18]
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 vivos or mortis causa. (5) It is
imprescriptible.[19]
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 the surname of the father.[20] The Family
Code gives legitimate children the right to bear the surnames of the
father and the mother,[21] 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.[22]
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 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. Republic[23] and Calderon v. Republic,[24] 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.
Petitioner cites Alfon v. Republic,[25] 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.
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 reaches the age of majority.[26] 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.
WHEREFORE, in view of the foregoing, the Petition for Review on
Certiorari is DENIED.
SO ORDERED.
REPUBLIC OF THE PHILIPPINES, Petitioner,
vs.
TRINIDAD R.A. CAPOTE, Respondent.
DECISION
CORONA, J.:
This petition for review on certiorari1 seeks to set aside the Court of
Appeals (CA) decision2 dated January 13, 2003 in CA-G.R. CV No.
66128, which affirmed the decision of the Regional Trial Court (RTC),
Branch 23 of San Juan, Southern Leyte dated September 14, 1999
granting a petition for change of name.
Respondent Trinidad R. A. Capote filed a petition for change of name of
her ward from Giovanni N. Gallamaso to Giovanni Nadores on
September 9, 1998. In Special Proceeding No. R-481,3 Capote as
Giovannis guardian ad litem averred:
xxx xxx xxx
1. [Respondent] is a Filipino citizen, of legal age, married, while minor
GIOVANNI N. GALLAMASO, is also a Filipino citizen, sixteen (16) years
old and both are residents of San Juan, Southern Leyte where they can
be served with summons and other court processes;
2. [Respondent] was appointed guardian [ad litem] of minor Giovanni
N. Gallamaso by virtue of a court order in Special [Proc.] No. R-459,
dated [August 18, 1998] xxx xxx authorizing her to file in court a
petition for change of name of said minor in accordance with the desire
of his mother [who is residing and working abroad];
3. Both [respondent] and minor have permanently resided in San Juan,
Southern Leyte, Philippines for more than fifteen (15) years prior to the
filing of this instant petition, the former since 1970 while the latter
since his birth [in 1982];

4. The minor was left under the care of [respondent] since he was yet
nine (9) years old up to the present;
5. Minor GIOVANNI N. GALLAMASO is the illegitimate natural child of
Corazon P. Nadores and Diosdado Gallamaso. [He] was born on July 9,
1982 [,] prior to the effectivity of the New Family Code and as such, his
mother used the surname of the natural father despite the absence of
marriage between them; and [Giovanni] has been known by that name
since birth [as per his birth certificate registered at the Local Civil
Register of San Juan, Southern Leyte];
6. The father, Diosdado Gallamaso, from the time [Giovanni] was born
and up to the present, failed to take up his responsibilities [to him] on
matters of financial, physical, emotional and spiritual concerns.
[Giovannis pleas] for attention along that line [fell] on deaf ears xxx
xxx xxx;
7. [Giovanni] is now fully aware of how he stands with his father and he
desires to have his surname changed to that of his mothers surname;
8. [Giovannis] mother might eventually petition [him] to join her in the
United States and [his] continued use of the surname Gallamaso, the
surname of his natural father, may complicate [his] status as natural
child; and
9. The change of name [from] GIOVANNI N. GALLAMASO to GIOVANNI
NADORES will be for the benefit of the minor.
xxx xxx xxx4
Respondent prayed for an order directing the local civil registrar to
effect the change of name on Giovannis birth certificate. Having found
respondents petition sufficient in form and substance, the trial court
gave due course to the petition.5 Publication of the petition in a
newspaper of general circulation in the province of Southern Leyte
once a week for three consecutive weeks was likewise ordered.6 The
trial court also directed that the local civil registrar be notified and that
the Office of the Solicitor General (OSG) be sent a copy of the petition
and order.7
Since there was no opposition to the petition, respondent moved for
leave of court to present her evidence ex parte before a courtappointed commissioner. The OSG, acting through the Provincial
Prosecutor, did not object; hence, the lower court granted the motion.

After the reception of evidence, the trial court rendered a decision

ordering the change of name from Giovanni N. Gallamaso to Giovanni
Nadores.8
From this decision, petitioner Republic of the Philippines, through the
OSG, filed an appeal with a lone assignment of error: the court a quo
erred in granting the petition in a summary proceeding.
Ruling that the proceedings were sufficiently adversarial in nature as
required, the CA affirmed the RTC decision ordering the change of
name.9
In this petition, the Republic contends that the CA erred in affirming the
trial courts decision which granted the petition for change of name
despite the non-joinder of indispensable parties.10 Petitioner cites
Republic of the Philippines v. Labrador11 and claims that the purported
parents and all other persons who may be adversely affected by the
childs change of name should have been made respondents to make
the proceeding adversarial.12
We deny the petition.
"The subject of rights must have a fixed symbol for individualization
which serves to distinguish him from all others; this symbol is his
name."13 Understandably, therefore, no person can change his name
or surname without judicial authority.14 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 remedy is covered by Rule
103,15 a separate and distinct proceeding from Rule 108 on mere
cancellation and correction of entries in the civil registry (usually
dealing only with innocuous or clerical errors thereon).16
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 well as successional rights.17 Such issues are ventilated only in

adversarial proceedings wherein all interested parties are impleaded
and due process is observed.18
When Giovanni was born in 1982 (prior to the enactment and
effectivity of the Family Code of the Philippines),19 the pertinent
provision of the Civil Code then as regards his use of a surname, read:
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 Registry of Julian Lin
Carulasan Wang20 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 child.1awphi1.net21

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
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 petitioner22 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 proceedings in
the lower court were not adversarial enough.23 (emphasis supplied)
A proceeding is adversarial where the party seeking relief has given
legal warning to the other party and afforded the latter an opportunity
to contest it.24 Respondent gave notice of the petition through
publication as required by the rules.25 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.
WHEREFORE, the petition is hereby DENIED and the January 13, 2003
decision of the Court of Appeals in CA-G.R. CV No. 66128 AFFIRMED.
SO ORDERED.
MARIA VIRGINIA V. REMO, G.R. No. 169202
Petitioner,
Present:
CARPIO, J., Chairperson,
-versus- BRION,
DEL CASTILLO,
ABAD, and
PEREZ, JJ.
THE HONORABLE SECRETARY
OF FOREIGN AFFAIRS, Promulgated:
Respondent. March 5, 2010

x-----------------------------------------------------------------------------------------x

DECISION
CARPIO, J.:

The Case
Before the Court is a petition for review[1] of the 27 May 2005
Decision[2] and 2 August 2005 Resolution[3] of the Court of Appeals in
CA-G.R. SP No. 87710. The Court of Appeals affirmed the decision of
the Office of the President, which in turn affirmed the decision of the
Secretary of Foreign Affairs denying petitioners request to revert to the
use of her maiden name in her replacement passport.

The Facts
Petitioner Maria Virginia V. Remo is a married Filipino citizen whose
Philippine passport was then expiring on 27 October 2000. Petitioner
being married to Francisco R. Rallonza, the following entries appear in
her passport: Rallonza as her surname, Maria Virginia as her given
name, and Remo as her middle name. Prior to the expiry of the validity
of her passport, petitioner, whose marriage still subsists, applied for
the renewal of her passport with the Department of Foreign Affairs
(DFA) office in Chicago, Illinois, U.S.A., with a request to revert to her
maiden name and surname in the replacement passport.
Petitioners request having been denied, Atty. Manuel Joseph R. Bretana
III, representing petitioner, wrote then Secretary of Foreign Affairs
Domingo Siason expressing a similar request.

On 28 August 2000, the DFA, through Assistant Secretary Belen F.

Anota, denied the request, stating thus:

This has reference to your letter dated 17 August 2000 regarding one
Ms. Maria Virginia V. Remo who is applying for renewal of her passport
using her maiden name.
This Office is cognizant of the provision in the law that it is not
obligatory for a married woman to use her husbands name. Use of
maiden name is allowed in passport application only if the married
name has not been used in previous application. The Implementing
Rules and Regulations for Philippine Passport Act of 1996 clearly
defines the conditions when a woman applicant may revert to her
maiden name, that is, only in cases of annulment of marriage, divorce
and death of the husband. Ms. Remos case does not meet any of these
conditions.[4] (Emphasis supplied)

Petitioners motion for reconsideration of the above-letter resolution

was denied in a letter dated 13 October 2000.[5]
On 15 November 2000, petitioner filed an appeal with the Office of the
President.

On 27 July 2004, the Office of the President dismissed the appeal[6]

and ruled that Section 5(d) of Republic Act No. 8239 (RA 8239) or the
Philippine Passport Act of 1996 offers no leeway for any other
interpretation than that only in case of divorce, annulment, or
declaration [of nullity] of marriage may a married woman revert to her
maiden name for passport purposes. The Office of the President further
held that in case of conflict between a general and special law, the
latter will control the former regardless of the respective dates of
passage. Since the Civil Code is a general law, it should yield to RA
8239.

On 28 October 2004, the Office of the President denied the motion for
reconsideration.[7]

Petitioner filed with the Court of Appeals a petition for review under
Rule 43 of the Rules of Civil Procedure.

In its Decision of 27 May 2005, the Court of Appeals denied the petition
and affirmed the ruling of the Office of the President. The dispositive
portion of the Court of Appeals decision reads:

WHEREFORE, premises considered, the petition is DENIED, and the

resolution dated July 27, 2004, and the order dated October 28, 2004
of the Office of the President in O.P. Case No. 001-A-9344 are hereby
AFFIRMED.
SO ORDERED.[8]

Petitioner moved for reconsideration which the Court of Appeals denied

in its Resolution dated 2 August 2005.

Hence, this petition.

The Court of Appeals Ruling

The Court of Appeals found no conflict between Article 370 of the Civil
Code[9] and Section 5(d) of RA 8239.[10] The Court of Appeals held
that for passport application and issuance purposes, RA 8239 limits the
instances when a married woman applicant may exercise the option to
revert to the use of her maiden name such as in a case of a divorce
decree, annulment or declaration of nullity of marriage. Since there
was no showing that petitioner's marriage to Francisco Rallonza has
been annulled, declared void or a divorce decree has been granted to
them, petitioner cannot simply revert to her maiden name in the
replacement passport after she had adopted her husbands surname in
her old passport. Hence, according to the Court of Appeals, respondent
was justified in refusing the request of petitioner to revert to her
maiden name in the replacement passport.
The Issue

The sole issue in this case is whether 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.
The Ruling of the Court
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. Honorable Judge Sharia District Court.[11]
In Yasin,[12] 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 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 ways provided by Article 370 of
the Civil Code.[13] 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 descent.[14]
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 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 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 OF WOMANS NAME DUE TO MARRIAGE;
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 passport.
[15] This prohibition, according to petitioner, 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 SURNAME.
[16]

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 her maiden name.[17]

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 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 IN STATUTORY
CONSTRUCTION IS THAT A SPECIAL LAW PREVAILS OVER A GENERAL
LAW,[18] 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 passage.[19]
Moreover, petitioners theory of implied repeal must fail. Wellentrenched 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 that each shall be effective.[20]
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
irreconcilable with the latter act.[21] 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 documents,[22] 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.
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 IT[23] 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 ITS REPRESENTATIVE.[24]
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.[25]
WHEREFORE, we DENY the petition. We AFFIRM the 27 May 2005
Decision and 2 August 2005 Resolution of the Court of Appeals in CAG.R. SP No. 87710.
SO ORDERED.

REPUBLIC OF THE PHILIPPINES,

Petitioner,

- versus -

JENNIFER B. CAGANDAHAN,
Respondent.
G.R. No. 166676
Present:
QUISUMBING, J., Chairperson,
CARPIO MORALES,
TINGA,
VELASCO, JR., and
BRION, JJ.
Promulgated:
September 12, 2008
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION
QUISUMBING, J.:
This is a petition for review under Rule 45 of the Rules of Court raising
purely questions of law and seeking a reversal of the Decision[1] dated
January 12, 2005 of the Regional Trial Court (RTC), Branch 33 of
Siniloan, Laguna, which granted the Petition for Correction of Entries in
Birth Certificate filed by Jennifer B. Cagandahan and ordered the
following changes of entries in Cagandahans birth certificate: (1) the
name Jennifer Cagandahan changed to Jeff Cagandahan and (2) gender
from female to male.
The facts are as follows.
On December 11, 2003, respondent Jennifer Cagandahan filed a
Petition for Correction of Entries in Birth Certificate[2] before the RTC,
Branch 33 of Siniloan, Laguna.
In her petition, she alleged that she was born on January 13, 1981 and
was registered as a female in the Certificate of Live Birth but while
growing up, she developed secondary male characteristics and was
diagnosed to have Congenital Adrenal Hyperplasia (CAH) which is a

condition where persons thus afflicted possess both male and female
characteristics. She further alleged that she was diagnosed to have
clitoral hyperthropy in her early years and at age six, underwent an
ultrasound where it was discovered that she has small ovaries. At age
thirteen, tests revealed that her ovarian structures had minimized, she
has stopped growing and she has no breast or menstrual development.
She then alleged that for all interests and appearances as well as in
mind and emotion, she has become a male person. Thus, she prayed
that her birth certificate be corrected such that her gender be changed
from female to male and her first name be changed from Jennifer to
Jeff.
The petition was published in a newspaper of general circulation for
three (3) consecutive weeks and was posted in conspicuous places by
the sheriff of the court. The Solicitor General entered his appearance
and authorized the Assistant Provincial Prosecutor to appear in his
behalf.
To prove her claim, respondent testified and presented the testimony
of Dr. Michael Sionzon of the Department of Psychiatry, University of
the Philippines-Philippine General Hospital. Dr. Sionzon issued a
medical certificate stating that respondents condition is known as CAH.
He explained that genetically respondent is female but because her
body secretes male hormones, her female organs did not develop
normally and she has two sex organs female and male. He testified
that this condition is very rare, that respondents uterus is not fully
developed because of lack of female hormones, and that she has no
monthly period. He further testified that respondents condition is
permanent and recommended the change of gender because
respondent has made up her mind, adjusted to her chosen role as
male, and the gender change would be advantageous to her.
The RTC granted respondents petition in a Decision dated January 12,
2005 which reads:
The Court is convinced that petitioner has satisfactorily shown that he
is entitled to the reliefs prayed [for]. Petitioner has adequately
presented to the Court very clear and convincing proofs for the
granting of his petition. It was medically proven that petitioners body
produces male hormones, and first his body as well as his action and
feelings are that of a male. He has chosen to be male. He is a normal
person and wants to be acknowledged and identified as a male.
WHEREFORE, premises considered, the Civil Register of Pakil, Laguna is
hereby ordered to make the following corrections in the birth
[c]ertificate of Jennifer Cagandahan upon payment of the prescribed
fees:
a)
By changing the name from Jennifer Cagandahan to JEFF
CAGANDAHAN; and
b)
By changing the gender from female to MALE.

It is likewise ordered that petitioners school records, voters registry,

baptismal certificate, and other pertinent records are hereby amended
to conform with the foregoing corrected data.
SO ORDERED.[3]
Thus, this petition by the Office of the Solicitor General (OSG) seeking
a reversal of the abovementioned ruling.
The issues raised by petitioner are:
THE TRIAL COURT ERRED IN GRANTING THE PETITION CONSIDERING
THAT:
I.
THE REQUIREMENTS OF RULES 103 AND 108 OF THE RULES OF COURT
HAVE NOT BEEN COMPLIED WITH; AND,
II.
CORRECTION OF ENTRY UNDER RULE 108 DOES NOT ALLOW CHANGE
OF SEX OR GENDER IN THE BIRTH CERTIFICATE, WHILE RESPONDENTS
MEDICAL CONDITION, i.e., CONGENITAL ADRENAL HYPERPLASIA DOES
NOT MAKE HER A MALE.[4]
Simply stated, the issue is whether 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.
The OSG contends that the petition below is fatally defective for noncompliance with Rules 103 and 108 of the Rules of Court because while
the local civil registrar is an indispensable party in a petition for
cancellation or correction of entries under Section 3, Rule 108 of the
Rules of Court, respondents petition before the court a quo did not
implead the local civil registrar.[5] The OSG further contends
respondents petition is fatally defective since it failed to state that
respondent is a bona fide resident of the province where the petition
was filed for at least three (3) years prior to the date of such filing as
mandated under Section 2(b), Rule 103 of the Rules of Court.[6] The
OSG argues that Rule 108 does not allow change of sex or gender in
the birth certificate and respondents claimed medical condition known
as CAH does not make her a male.[7]
On the other hand, respondent counters that although the Local Civil
Registrar of Pakil, Laguna was not formally named a party in the
Petition for Correction of Birth Certificate, nonetheless the Local Civil
Registrar was furnished a copy of the Petition, the Order to publish on
December 16, 2003 and all pleadings, orders or processes in the
course of the proceedings,[8] respondent is actually a male person and
hence his birth certificate has to be corrected to reflect his true
sex/gender,[9] change of sex or gender is allowed under Rule 108,[10]
and respondent substantially complied with the requirements of Rules
103 and 108 of the Rules of Court.[11]
Rules 103 and 108 of the Rules of Court provide:

Rule 103
CHANGE OF NAME
SECTION 1. Venue. A person desiring to change his name shall present
the petition to the Regional Trial Court of the province in which he
resides, [or, in the City of Manila, to the Juvenile and Domestic
Relations Court].
SEC. 2. Contents of petition. A petition for change of name shall be
signed and verified 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 fide resident of the province
where the petition is filed for at least three (3) years prior to the date
of such filing;
(b) The cause for which the change of the petitioner's name is sought;
(c) The name asked for.
SEC. 3. Order for hearing. If the petition filed is sufficient in form and
substance, the court, by an order reciting the purpose of the petition,
shall fix a date and place for the hearing thereof, and shall direct that a
copy of the order 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 thirty (30) days prior to an
election nor within four (4) months after the last publication of the
notice.
SEC. 4. Hearing. Any interested person may appear at the hearing and
oppose the petition. The Solicitor General or the proper provincial or
city fiscal shall appear on behalf of the Government of the Republic.
SEC. 5. Judgment. Upon satisfactory proof in open court on the date
fixed in the order that such order has been published as directed and
that the allegations of the petition are true, the court shall, if proper
and reasonable cause appears for changing the name of the petitioner,
adjudge that such name be changed in accordance with the prayer of
the petition.
SEC. 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.
Rule 108
CANCELLATION OR CORRECTION OF ENTRIES
IN THE CIVIL REGISTRY
SECTION 1. Who may file petition. Any person interested in any act,
event, order or decree concerning the civil status of persons which has
been recorded in the civil register, may file a verified petition for the
cancellation or correction of any entry relating thereto, with the
Regional Trial Court of the province where the corresponding civil
registry is located.

SEC. 2. Entries subject to cancellation or correction. Upon good and

valid grounds, the following entries in the civil register may be
cancelled or corrected: (a) births; (b) marriages; (c) deaths; (d) legal
separations; (e) judgments of annulments of marriage; (f) judgments
declaring marriages void from the beginning; (g) legitimations; (h)
adoptions; (i) acknowledgments of natural children; (j) naturalization;
(k) election, loss or recovery of citizenship; (l) civil interdiction; (m)
judicial determination of filiation; (n) voluntary emancipation of a
minor; and (o) changes of name.
SEC. 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.
SEC. 4. Notice and publication. Upon the filing of the petition, the court
shall, by an order, fix the time and place for the hearing of the same,
and cause reasonable notice thereof to be given to the persons named
in the petition. The court shall also cause the order to be published
once a week for three (3) consecutive weeks in a newspaper of general
circulation in the province.
SEC. 5. Opposition. The civil registrar and any person having or
claiming any interest under the entry whose cancellation or correction
is sought may, within fifteen (15) days from notice of the petition, or
from the last date of publication of such notice, file his opposition
thereto.
SEC. 6. Expediting proceedings. The court in which the proceedings 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.
SEC. 7. Order. After hearing, the court may either dismiss the petition
or issue an order granting the cancellation or correction prayed for. In
either case, a certified copy of the judgment shall be served upon the
civil registrar concerned who shall annotate the same in his record.
The OSG argues that the petition below is fatally defective for noncompliance with Rules 103 and 108 of the Rules of Court because
respondents petition did not implead the local civil registrar. Section 3,
Rule 108 provides that the civil registrar and all persons who have or
claim any interest which would be affected thereby shall be made
parties to the proceedings. Likewise, the local civil registrar is required
to be made a party in a proceeding for the correction of name in the
civil registry. He is an indispensable party without whom no final
determination of the case can be had.[12] Unless all possible
indispensable parties were duly notified of the proceedings, the same
shall be considered as falling much too short of the requirements of the
rules.[13] The corresponding petition should also implead as
respondents the civil registrar and all other persons who may have or
may claim to have any interest that would be affected thereby.[14]

Respondent, however, invokes Section 6,[15] Rule 1 of the Rules of

Court which states that courts shall construe the Rules liberally to
promote their objectives of securing to the parties a just, speedy and
inexpensive disposition of the matters brought before it. We agree that
there is substantial compliance with Rule 108 when respondent
furnished a copy of the petition to the local civil registrar.
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.
Together with Article 376[16] of the Civil Code, this provision was
amended by Republic Act No. 9048[17] 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, 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 register.[18]
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 applicable procedure is Rule 108 of
the Rules of Court.[19]
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:
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 after birth.[20]
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.
CAH is one of many conditions[21] 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 female.[22] 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 intersex may 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 conform
to either a male or female gender role.[23] 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 either male or female genitals.[24] More
commonly, 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 female.[25] 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.
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
taking lifelong medication,[26] 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 intersex anatomy. To him belongs the
human right to the pursuit of happiness and of health. Thus, to him
should belong the primordial choice of what courses of action to take
along the path of his sexual development and maturation. In the
absence of evidence that respondent is an incompetent[27] 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 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 that will follow.[28] 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.
WHEREFORE, the Republics petition is DENIED. The Decision dated
January 12, 2005 of the Regional Trial Court, Branch 33 of Siniloan,
Laguna, is AFFIRMED. No pronouncement as to costs.
SO ORDERED.
GERBERT R. CORPUZ,
Petitioner,
vs
DAISYLYN TIROL STO. TOMAS and The SOLICITOR GENERAL,
Respondents. -- G.R. No. 186571
Present:
CARPIO MORALES, J., Chairperson,
BRION,
BERSAMIN,
*ABAD, and
VILLARAMA, JR., JJ.
Promulgated:
August 11, 2010
x-------------------------------------------------------------------------------------------------------------x
DECISION
BRION, J.:
Before the Court is a direct appeal from the decision[1] of the Regional
Trial Court (RTC) of Laoag City, Branch 11, elevated via a petition for
review on certiorari[2] under Rule 45 of the Rules of Court (present
petition).

Petitioner Gerbert R. Corpuz was a former Filipino citizen who acquired

Canadian citizenship through naturalization on November 29, 2000.[3]
On January 18, 2005, Gerbert married respondent Daisylyn T. Sto.
Tomas, a Filipina, in Pasig City.[4] Due to work and other professional
commitments, Gerbert left for Canada soon after the wedding. He
returned to the Philippines sometime in April 2005 to surprise Daisylyn,
but was shocked to discover that his wife 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, Windsor,
Ontario, Canada granted Gerberts petition for divorce on December 8,
2005. The divorce decree took effect a month later, on January 8,
2006.[5]
Two years after the divorce, Gerbert has moved on and has found
another Filipina to love. Desirous of marrying his new Filipina fiance in
the Philippines, Gerbert went to the Pasig City Civil Registry Office and
registered the Canadian divorce decree on his and Daisylyns marriage
certificate. Despite the registration of the divorce decree, an official of
the National Statistics Office (NSO) informed Gerbert that the marriage
between him and Daisylyn still subsists under Philippine law; to be
enforceable, the foreign divorce decree must first be judicially
recognized by a competent Philippine court, pursuant to NSO Circular
No. 4, series of 1982.[6]
Accordingly, Gerbert filed a petition for judicial recognition of foreign
divorce and/or declaration of marriage as dissolved (petition) with the
RTC. Although summoned, Daisylyn did not file any responsive
pleading but submitted instead a notarized letter/manifestation to the
trial court. She offered no opposition to Gerberts petition and, in fact,
alleged her desire to file a similar case herself but was prevented by
financial and personal circumstances. She, thus, requested that she be
considered as a party-in-interest with a similar prayer to Gerberts.
In its October 30, 2008 decision,[7] 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 only the Filipino spouse can
avail of the remedy, under the second paragraph of Article 26 of the
Family Code,[8] in order for him or her to be able to remarry under
Philippine law.[9] Article 26 of the Family Code reads:
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), 36, 37 and 38.

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 likewise have capacity to remarry under Philippine law.
This conclusion, the RTC stated, is consistent with the legislative intent
behind the enactment of the second paragraph of Article 26 of the
Family Code, as determined by the Court in Republic v. Orbecido III;[10]
the provision was enacted to avoid the absurd situation where the
Filipino spouse remains married to the alien spouse who, after
obtaining a divorce, is no longer married to the Filipino spouse.[11]
THE PETITION
From the RTCs ruling,[12] Gerbert filed the present petition.[13]
Gerbert asserts that his petition before the RTC is essentially for
declaratory relief, similar to that filed in Orbecido; he, thus, similarly
asks for a determination of his rights under the second paragraph of
Article 26 of the Family Code. Taking into account the rationale behind
the second paragraph of Article 26 of the Family Code, he contends
that the provision applies as well to the benefit of the alien spouse. He
claims that the RTC ruling unduly stretched the doctrine in Orbecido by
limiting the standing to file the petition only to the Filipino spouse an
interpretation he claims to be contrary to the essence of the second
paragraph of Article 26 of the Family Code. He considers himself as a
proper party, vested with sufficient legal interest, to institute the case,
as there is a possibility that he might be prosecuted for bigamy if he
marries his Filipina fiance in the Philippines since two marriage
certificates, involving him, would be on file with the Civil Registry
Office. The Office of the Solicitor General and Daisylyn, in their
respective Comments,[14] both support Gerberts position.
Essentially, the petition raises the issue of whether the second
paragraph of Article 26 of the Family Code extends to aliens the right
to petition a court of this jurisdiction for the recognition of a foreign
divorce decree.
THE COURTS RULING
The alien spouse can claim no right under the second paragraph of
Article 26 of the Family Code as the substantive right it establishes is in
favor of the Filipino spouse
The resolution of the issue requires a review of the legislative history
and intent behind the second paragraph of Article 26 of the Family
Code.

The Family Code recognizes only two types of defective marriages

void[15] and voidable[16] marriages. In both cases, the basis for the
judicial declaration of absolute nullity or annulment of the marriage
exists before or at the time of the marriage. Divorce, on the other
hand, contemplates the dissolution of the lawful union for cause arising
after the marriage.[17] Our family laws do not recognize absolute
divorce between Filipino citizens.[18]
Recognizing the reality that divorce is a possibility in marriages
between a Filipino and an alien, President Corazon C. Aquino, in the
exercise of her legislative powers under the Freedom Constitution,[19]
enacted Executive Order No. (EO) 227, amending Article 26 of the
Family Code to its present wording, as follows:
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), 36, 37 and 38.
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 likewise have capacity to remarry under Philippine law.
Through the second paragraph of Article 26 of the Family Code, EO 227
effectively incorporated into the law this Courts holding in Van Dorn v.
Romillo, Jr.[20] and Pilapil v. Ibay-Somera.[21] In both cases, the Court
refused to acknowledge the alien spouses assertion of marital rights
after a foreign courts divorce decree between the alien and the Filipino.
The Court, thus, recognized that the foreign divorce had already
severed the marital bond between the spouses. The Court reasoned in
Van Dorn v. Romillo that:
To maintain x x x that, under our laws, [the Filipino spouse] has to be
considered still married to [the alien spouse] and still subject to a
wife's obligations x x x cannot be just. [The Filipino spouse] should not
be obliged to live together with, observe respect and fidelity, and
render support to [the alien spouse]. The latter should not continue to
be one of her heirs with possible rights to conjugal property. She should
not be discriminated against in her own country if the ends of justice
are to be served.[22]
As the RTC correctly stated, the provision was included in the law to
avoid the absurd situation where the Filipino spouse remains married
to the alien spouse who, after obtaining a divorce, is no longer married

to the Filipino spouse.[23] The legislative intent is for the benefit of the
Filipino spouse, by clarifying his or her marital status, settling the
doubts created by the divorce decree. Essentially, the second
paragraph of Article 26 of the Family Code provided the Filipino spouse
a substantive right to have his or her marriage to the alien spouse
considered as dissolved, capacitating him or her to remarry.[24]
Without the second paragraph of Article 26 of the Family Code, the
judicial recognition of the foreign decree of divorce, whether in a
proceeding instituted precisely for that purpose or as a related issue in
another proceeding, would be of no significance to the Filipino spouse
since our laws do not recognize divorce as a mode of severing the
marital bond;[25] Article 17 of the Civil Code provides that the policy
against absolute divorces cannot be subverted by judgments
promulgated in a foreign country. The inclusion of the second
paragraph in Article 26 of the Family Code provides the direct
exception to this rule and serves as basis for recognizing the
dissolution of the marriage between the Filipino spouse and his or her
alien spouse.
Additionally, an action based on the second paragraph of Article 26 of
the Family Code is not limited to the recognition of the foreign divorce
decree. If the court finds that the decree capacitated the alien spouse
to remarry, the courts can declare that the Filipino spouse is likewise
capacitated to contract another marriage. No court in this jurisdiction,
however, can make a similar declaration for the alien spouse (other
than that already established by the decree), whose status and legal
capacity are generally governed by his national law.[26]
Given the rationale and intent behind the enactment, and the purpose
of the second paragraph of Article 26 of the Family Code, the RTC was
correct in limiting the applicability of the provision for the benefit of the
Filipino spouse. In other words, only the Filipino spouse can invoke the
second paragraph of Article 26 of the Family Code; the alien spouse
can claim no right under this provision.
The foreign divorce decree is presumptive evidence of a right that
clothes the party with legal interest to petition for its recognition in this
jurisdiction
We qualify our above conclusion i.e., that the second paragraph of
Article 26 of the Family Code bestows no rights in favor of aliens with
the complementary statement that this conclusion is not sufficient
basis to dismiss Gerberts petition before the RTC. In other words, the
unavailability of the second paragraph of Article 26 of the Family Code
to aliens does not necessarily strip Gerbert of legal interest to petition

the RTC for the recognition of his foreign divorce decree. The foreign
divorce decree itself, after its authenticity and conformity with the
aliens national law have been duly proven according to our rules of
evidence, serves as a presumptive evidence of right in favor of
Gerbert, pursuant to Section 48, Rule 39 of the Rules of Court which
provides for the effect of foreign judgments. This Section states:
SEC. 48. Effect of foreign judgments or final orders.The effect of a
judgment or final order of a tribunal of a foreign country, having
jurisdiction to render the judgment or final order is as follows:
(a)
In case of a judgment or final order upon a specific thing,
the judgment or final order is conclusive upon the title of the thing; and
(b)
In case of a judgment or final order against a person, the
judgment or final order is presumptive evidence of a right as between
the parties and their successors in interest by a subsequent title.
In either case, the judgment or final order may be repelled by evidence
of a want of jurisdiction, want of notice to the party, collusion, fraud, or
clear mistake of law or fact.
To our mind, direct involvement or being the subject of the foreign
judgment is sufficient to clothe a party with the requisite interest to
institute an action before our courts for the recognition of the foreign
judgment. In a divorce situation, we have declared, no less, that the
divorce obtained by an alien abroad may be recognized in the
Philippines, provided the divorce is valid according to his or her
national law.[27]
The starting point in any recognition of a foreign divorce judgment is
the acknowledgment that our courts do not take judicial notice of
foreign judgments and laws. Justice Herrera explained that, as a rule,
no sovereign is bound to give effect within its dominion to a judgment
rendered by a tribunal of another country.[28] This means that the
foreign judgment and its authenticity must be proven as facts under
our rules on evidence, together with the aliens applicable national law
to show the effect of the judgment on the alien himself or herself.[29]
The recognition may be made in an action instituted specifically for the
purpose or in another action where a party invokes the foreign decree
as an integral aspect of his claim or defense.
In Gerberts case, since both the foreign divorce decree and the
national law of the alien, recognizing his or her capacity to obtain a
divorce, purport to be official acts of a sovereign authority, Section 24,
Rule 132 of the Rules of Court comes into play. This Section requires

proof, either by (1) official publications or (2) copies attested by the

officer having legal custody of the documents. If the copies of official
records are not kept in the Philippines, these must be (a) accompanied
by a certificate issued by the proper diplomatic or consular officer in
the Philippine foreign service stationed in the foreign country in which
the record is kept and (b) authenticated by the seal of his office.
The records show that Gerbert attached to his petition a copy of the
divorce decree, as well as the required certificates proving its
authenticity,[30] but failed to include a copy of the Canadian law on
divorce.[31] Under this situation, we can, at this point, simply dismiss
the petition for insufficiency of supporting evidence, unless we deem it
more appropriate to remand the case to the RTC to determine whether
the divorce decree is consistent with the Canadian divorce law.
We deem it more appropriate to take this latter course of action, given
the Article 26 interests that will be served and the Filipina wifes
(Daisylyns) obvious conformity with the petition. A remand, at the
same time, will allow other interested parties to oppose the foreign
judgment and overcome a petitioners presumptive evidence of a right
by proving want of jurisdiction, want of notice to a party, collusion,
fraud, or clear mistake of law or fact. Needless to state, every
precaution must be taken to ensure conformity with our laws before a
recognition is made, as the foreign judgment, once recognized, shall
have the effect of res judicata[32] between the parties, as provided in
Section 48, Rule 39 of the Rules of Court.[33]
In fact, more than the principle of comity that is served by the practice
of reciprocal recognition of foreign judgments between nations, the res
judicata effect of the foreign judgments of divorce serves as the
deeper basis for extending judicial recognition and for considering the
alien spouse bound by its terms. This same effect, as discussed above,
will not obtain for the Filipino spouse were it not for the substantive
rule that the second paragraph of Article 26 of the Family Code
provides.
Considerations beyond the recognition of the foreign divorce decree
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
decree.[34] 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 legitimate or illegitimate,
or his being married or not.[35]
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)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)

births;
deaths;
marriages;
annulments of marriages;
divorces;
legitimations;
adoptions;
acknowledgment of natural children;
naturalization; and
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 Circular No. 4, series
of 1982,[36] and Department of Justice Opinion No. 181, series of
1982[37] 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.
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 is located;[38] that
the civil registrar and all persons who have or claim any interest must
be made parties to the proceedings;[39] and that the time and place
for hearing must be published in a newspaper of general circulation.
[40] 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
the appropriate adversarial proceeding[41] 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.
WHEREFORE, we GRANT the petition for review on certiorari, and
REVERSE the October 30, 2008 decision of the Regional Trial Court of
Laoag City, Branch 11, as well as its February 17, 2009 order. We order
the REMAND of the case to the trial court for further proceedings in
accordance with our ruling above. Let a copy of this Decision be
furnished the Civil Registrar General. No costs.
SO ORDERED.
YASUO IWASAWA,
Petitioner,
-versusFELISA
CUSTODIO GANGAN 1
(a.k.a FELISA GANGAN
ARAMBULO, and FELISA
GANGAN IWASAWA) and the
LOCAL CIVIL REGISTRAR OF
PASAY CITY,
Respondents.
G.R. No. 204169
Present:
SERENO, C.J,
Chairperson,
LEONARDO-DE CASTRO,
BERSAMIN,
VILLARAMA, JR., and
REYES, JJ.
Promulgated:
SEP 11 2013
X-------------------------------------------------- -X
DECISION
VILLARAMA, JR, J.:
Before us is a petition for review on certiorari under Rule 45 of the
1997 Rules of Civil Procedure, as amended, assailing the September 4,
20 12

Decision2 and October 16, 2012 Order3 of the Regional Trial Com1
(RTC),
Branch 43, of Manila in Civil Case No. 11-126203. The RTC denied the
petition for declaration of nullity of the marriage of petitioner Yasuo
Iwasawa with private respondent Felisa Custodio Gangan due to
insufficient
evidence.
The antecedents follow:
Petitioner, a Japanese national, met private respondent sometime in
2002 in one of his visits to the Philippines. Private respondent
introduced
Also spelled as "Gafigan" in some paris of the records. 2 Rollo, pp. 3840. Penned by Presiding Judge Roy G. Gironella.
Id. at 41-42.
\'
Decision 2 G.R. No. 204169
herself as single and has never married before. Since then, the two
became close to each other. Later that year, petitioner came back to
the
Philippines and married private respondent on November 28, 2002 in
Pasay
City. After the wedding, the couple resided in Japan.4
In July 2009, petitioner noticed his wife become depressed.
Suspecting that something might have happened in the Philippines, he
confronted his wife about it. To his shock, private respondent confessed
to
him that she received news that her previous husband passed away.5
Petitioner sought to confirm the truth of his wifes confession and
discovered that indeed, she was married to one Raymond Maglonzo
Arambulo and that their marriage took place on June 20, 1994.6
This
prompted petitioner to file a petition7
for the declaration of his marriage to
private respondent as null and void on the ground that their marriage
is a
bigamous one, based on Article 35(4) in relation to Article 41 of the
Family
Code of the Philippines.
During trial, aside from his testimony, petitioner also offered the
following pieces of documentary evidence issued by the National
Statistics
Office (NSO):
(1) Certificate of Marriage8
between petitioner and private respondent
marked as Exhibit A to prove the fact of marriage between the
parties on November 28, 2002;

(2) Certificate of Marriage9

between private respondent and Raymond
Maglonzo Arambulo marked as Exhibit B to prove the fact of
marriage between the parties on June 20, 1994;
(3) Certificate of Death10 of Raymond Maglonzo Arambulo marked
as Exhibits C and C-1 to prove the fact of the latters death on
July 14, 2009; and
(4) Certification11 from the NSO to the effect that there are two
entries of marriage recorded by the office pertaining to private
respondent marked as Exhibit D to prove that private
respondent in fact contracted two marriages, the first one was to a
Raymond Maglonzo Arambulo on June 20, 1994, and second, to
petitioner on November 28, 2002.
4
Id. at 44.
5
Id. at 45.
6
Id.
7
Id. at 43-47-A.
8
Id. at 58.
9
Id. at 59.
10 Id. at 60-61.
11 Id. at 62.
Decision 3 G.R. No. 204169
The prosecutor appearing on behalf of the Office of the Solicitor
General (OSG) admitted the authenticity and due execution of the
above
documentary exhibits during pre-trial.12
On September 4, 2012, the RTC rendered the assailed decision. It
ruled that there was insufficient evidence to prove private
respondents prior
existing valid marriage to another man. It held that while petitioner
offered
the certificate of marriage of private respondent to Arambulo, it was
only
petitioner who testified about said marriage. The RTC 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.
Petitioner filed a motion for reconsideration, but the same was denied
by the RTC in an Order dated October 16, 2012.
Hence this petition raising the sole legal issue of whether 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.
Petitioner argues that the documentary evidence he presented are
public documents which are considered self-authenticating and thus it
was
unnecessary to call the NSO Records Custodian as witness. He cites
Article
410 of the Civil Code which provides that 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 stated therein. Moreover, the
trial
prosecutor himself also admitted the authenticity of said documents.
The OSG, in its Comment,13 submits that the findings of the RTC are
not in accord with law and established jurisprudence. It contends that
both
Republic Act No. 3753, otherwise known as the Law on Registry of Civil
Status, and the Civil Code elaborated on the character of documents
arising
from records and entries made by the civil registrar and categorically
declared them as public documents. Being public documents, said
documents are admissible in evidence even without further proof of
their due
execution and genuineness and consequently, there was no need for
the court
to require petitioner to present the records custodian or officer from
the NSO
to testify on them. The OSG further contends that public documents
have
probative value since they are prima facie evidence of the facts stated
therein as provided in the above-quoted provision of the Civil Code.
Thus,
the OSG submits that the public documents presented by petitioner,

considered together, completely establish the facts in issue.

12 Id. at 52.
13 Id. at 101-111.
Decision 4 G.R. No. 204169
In her letter14 dated March 19, 2013 to this Court, private respondent
indicated that she is not against her husbands petition to have their
marriage
declared null and void. She likewise admitted therein that she
contracted
marriage with Arambulo on June 20, 1994 and contracted a second
marriage
with petitioner on November 28, 2002. She further admitted that it was
due
to poverty and joblessness that she married petitioner without telling
the
latter that she was previously married. Private respondent also
confirmed
that it was when she found out that Arambulo passed away on July 14,
2009
that she had the guts to confess to petitioner about her previous
marriage.
Thereafter, she and petitioner have separated.
We grant the petition.
There is no question that the documentary evidence submitted by
petitioner are all public documents. As 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 genuineness.15 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 marriage,16 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
14 Id. at 99.
15 Salas v. Sta. Mesa Market Corporation, 554 Phil. 343, 348 (2007).
See also RULES OF COURT, Rule
132, Secs. 23, 24, 25, 27 and 30. 16 Teves v. People, G.R. No. 188775,
August 24, 2011, 656 SCRA 307, 313-314, citing Re: Complaint of
Mrs. Corazon S. Salvador against Spouses Noel and Amelia Serafico,
A.M. No. 2008-20-SC, March
15, 2010, 615 SCRA 186, 198-199, further citing Morigo v. People, 466
Phil. 1013, 1024 (2004);
Domingo v. Court of Appeals, G.R. No. 104818, September 17, 1993,
226 SCRA 572; Terre v. Terre,
A.C. No. 2349, July 3, 1992, 211 SCRA 6; Wiegel v. Sempio-Diy, No. L53703, August 19, 1986, 143
SCRA 499; Vda. De Consuegra v. Government Service Insurance
System, No. L-28093, January 30,
1971, 37 SCRA 315; Gomez v. Lipana, No. L-23214, June 30, 1970, 33
SCRA 615.
Decision 5 G.R. No. 204169
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 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 respondent's 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.
WHEREFORE, the petition for review on certiorari is GRANTED.
The September 4, 2012 Decision and October 16, 2012 Order of the
Regional Trial Court of Manila, Branch 43, in Civil Case No. 11-126203
are
hereby SET ASIDE. The marriage of petitioner Yasuo lwasawa and
private
respondent Felisa Custodio Gangan is declared NULL and VOID.
The Local Civil Registrar of Pasay City and the National Statistics
Office are hereby ORDERED to make proper entries into the records of
the
abovementioned parties in accordance with this Decision.
No pronouncement as to costs.
SO ORDERED.
REPUBLIC OF THE PHILIPPINES, Petitioner,
vs.
MERLINDA L. OLAYBAR, Respondent.
DECISION
PERALTA, J.:
Assailed in this petition for review on certiorari under Rule 45 of the
Rules of Court are the Regional Trial Court1 (RTC) Decision2 dated May
5, 2009 and Order3 dated August 25, 2009 in SP. Proc. No. 16519-CEB.
The assailed decision granted respondent Merlinda L. Olaybar's petition
for cancellation of entries in the latter's marriage contract; while the
assailed order denied the motion for reconsideration filed by petitioner
Republic of the Philippines through the Office of the Solicitor General
(OSG).
The facts of the case are as follows:
Respondent requested from the National Statistics Office (NSO) a
Certificate of No Marriage (CENOMAR) as one of the requirements for
her marriage with her boyfriend of five years. Upon receipt thereof, she
discovered that she was already married to a certain Ye Son Sune, a
Korean National, on June 24, 2002, at the Office of the Municipal Trial
Court in Cities (MTCC), Palace of Justice. She denied having contracted
said marriage and claimed that she did not know the alleged husband;
she did not appear before the solemnizing officer; and, that the

signature appearing in the marriage certificate is not hers.4 She, thus,

filed a Petition for Cancellation of Entries in the Marriage Contract,
especially the entries in the wife portion thereof.5 Respondent
impleaded the Local Civil Registrar of Cebu City, as well as her alleged
husband, as parties to the case.
During trial, respondent testified on her behalf and explained that she
could not have appeared before Judge Mamerto Califlores, the
supposed solemnizing officer, at the time the marriage was allegedly
celebrated, because she was then in Makati working as a medical
distributor in Hansao Pharma. She completely denied having known
the supposed husband, but she revealed that she recognized the
named witnesses to the marriage as she had met them while she was
working as a receptionist in Tadels Pension House. She believed that
her name was used by a certain Johnny Singh, who owned a travel
agency, whom she gave her personal circumstances in order for her to
obtain a passport.6 Respondent also presented as witness a certain
Eufrocina Natinga, an employee of MTCC, Branch 1, who confirmed that
the marriage of Ye Son Sune was indeed celebrated in their office, but
claimed that the alleged wife who appeared was definitely not
respondent.7 Lastly, a document examiner testified that the signature
appearing in the marriage contract was forged.8
On May 5, 2009, the RTC rendered the assailed Decision, the
dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered, the petition is granted in
favor of the petitioner, Merlinda L. Olaybar. The Local Civil Registrar of
Cebu City is directed to cancel all the entries in the WIFE portion of the
alleged marriage contract of the petitioner and respondent Ye Son
Sune.
SO ORDERED.9
Finding that the signature appearing in the subject marriage contract
was not that of respondent, the court found basis in granting the
latters prayer to straighten her record and rectify the terrible
mistake.10
Petitioner, however, moved for the reconsideration of the assailed
Decision on the grounds that: (1) there was no clerical spelling,
typographical and other innocuous errors in the marriage contract for it
to fall within the provisions of Rule 108 of the Rules of Court; and (2)
granting the cancellation of all the entries in the wife portion of the
alleged marriage contract is, in effect, declaring the marriage void ab
initio.11

In an Order dated August 25, 2009, the RTC denied petitioners motion
for reconsideration couched in this wise:
WHEREFORE, the court hereby denies the Motion for Reconsideration
filed by the Republic of the Philippines. Furnish copies of this order to
the Office of the Solicitor General, the petitioners counsel, and all
concerned government agencies.
SO ORDERED.12
Contrary to petitioners stand, the RTC held that it had jurisdiction to
take cognizance of cases for correction of entries even on substantial
errors under Rule 108 of the Rules of Court being the appropriate
adversary proceeding required. Considering that respondents identity
was used by an unknown person to contract marriage with a Korean
national, it would not be feasible for respondent to institute an action
for declaration of nullity of marriage since it is not one of the void
marriages under Articles 35 and 36 of the Family Code.13
Petitioner now comes before the Court in this Petition for Review on
Certiorari under Rule 45 of the Rules of Court seeking the reversal of
the assailed RTC Decision and Order based on the following grounds:
I.
RULE 108 OF THE REVISED RULES OF COURT APPLIES ONLY WHEN
THERE ARE ERRORS IN THE ENTRIES SOUGHT TO BE CANCELLED OR
CORRECTED.
II.
GRANTING THE CANCELLATION OF "ALL THE ENTRIES IN THE WIFE
PORTION OF THE ALLEGED MARRIAGE CONTRACT," IS IN EFFECT
DECLARING THE MARRIAGE VOID AB INITIO.14
Petitioner claims that there are no errors in the entries sought to be
cancelled or corrected, because the entries made in the certificate of
marriage are the ones provided by the person who appeared and
represented herself as Merlinda L. Olaybar and are, in fact, the latters
personal circumstances.15 In directing the cancellation of the entries in
the wife portion of the certificate of marriage, the RTC, in effect,
declared the marriage null and void ab initio.16 Thus, the petition
instituted by respondent is actually a petition for declaration of nullity
of marriage in the guise of a Rule 108 proceeding.17

We deny the petition.

At the outset, it is necessary to stress that a direct recourse to this
Court from the decisions and final orders of the RTC may be taken
where only questions of law are raised or involved. There is a question
of law when the doubt arises as to what the law is on a certain state of
facts, which does not call for the examination of the probative value of
the evidence of the parties.18 Here, the issue raised by petitioner is
whether or not the cancellation of entries in the marriage contract
which, in effect, nullifies the marriage may be undertaken in a Rule 108
proceeding. Verily, petitioner raised a pure question of law.
Rule 108 of the Rules of Court sets forth the rules on cancellation or
correction of entries in the civil registry, to wit:
SEC. 1. Who may file petition. Any person interested in any act,
event, order or decree concerning the civil status of persons which has
been recorded in the civil register, may file a verified petition for the
cancellation or correction of any entry relating thereto, with the
Regional Trial Court of the province where the corresponding civil
registry is located.
SEC. 2. Entries subject to cancellation or correction. Upon good and
valid grounds, the following entries in the civil register may be
cancelled or corrected: (a) births; (b) marriages; (c) deaths; (d) legal
separations; (e) judgments of annulments of marriage; (f) judgments
declaring marriages void from the beginning; (g) legitimations; (h)
adoptions; (i) acknowledgments of natural children; (j) naturalization;
(k) election, loss or recovery of citizenship; (l) civil interdiction; (m)
judicial determination of filiation; (n) voluntary emancipation of a
minor; and (o) changes of name.
SEC. 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.
SEC. 4. Notice and Publication. Upon the filing of the petition, the
court shall, by an order, fix the time and place for the hearing of the
same, and cause reasonable notice thereof to be given to the persons
named in the petition. The court shall also cause the order to be
published once a week for three (3) consecutive weeks in a newspaper
of general circulation in the province.
SEC. 5. Opposition. The civil registrar and any person having or
claiming any interest under the entry whose cancellation or correction

is sought may, within fifteen (15) days from notice of the petition, or
from the last date of publication of such notice, file his opposition
thereto.
SEC. 6. Expediting proceedings. The court in which the proceedings 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.
SEC. 7. Order. After hearing, the court may either dismiss the petition
or issue an order granting the cancellation or correction prayed for. In
either case, a certified copy of the judgment shall be served upon the
civil registrar concerned who shall annotate the same in his record.
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 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 parties-respondents. 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 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.
WHEREFORE, premises considered, the petition is DENIED for lack of
merit. The Regional Trial Court Decision dated May 5, 2009 and Order
dated August 25, 2009 in SP. Proc. No. 16519-CEB, are AFFIRMED.
SO ORDERED.