Note: A middle name has practical or legal significance as it serves to identify the maternal pedigree or filiation of a person and distinguishes him from others who may have the same given name and surname as he has. Art. 364 of the Civil Code states that legitimate and legitimated children shall principally use the surname of their father. Art. 174 of the Family Code gives legitimate children the right to bear the surnames of the father and mother, while illegitimate children, under Art. 176, as amended by R.A. 9255, shall use the surname of their mother, unless their father recognizes their filiation, in which case, they may bear the father's surname. In the case of these children, their registration in the civil registry requires that their middle names be indicated therein, apart of course from their given names and surnames. (In re:
Petition for Change of Name and/or Correction of Entry in the Civil Registry of Julian Lin Carulasan Wang, 454 SCRA 155)
Q: Honorato filed a petition to adopt his minor illegitimate child Stephanie. Stephanie has been using her mother's middle name and surname. He prayed that Stephanie's middle name be changed from "Astorga" to "Garcia," which is her mother's surname and that her surname "Garcia" be changed to "Catindig," which is his surname. This the trial court denied. Was the trial court correct in denying Honorato’s request for Stephanie’s use of her mother’s surname as her middle name?
A: No. The name of an individual has two parts – the given name or proper name and the surname or family name. 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. The Civil Code (Arts. 364 to 380) is silent as to the use of a middle name. Even Art. 176 of the FC, as amended by R.A. 9255 (An Act Allowing Illegitimate Children to Use the Surname of Their Father) is silent as to what middle name a child may use.
An adopted child is entitled to all the rights provided by law to a legitimate child without discrimination of any kind, including the right to bear the surname of her father and her mother. As she had become a legitimate child on account of her adoption, it follows that Stephanie is entitled to utilize the surname of her father, Honorato
Catindig, and that of her mother, Gemma Garcia.
Since there is no law prohibiting an illegitimate child adopted by her natural father, like Stephanie, to use, as middle name her mother's surname, the High Court found no reason why she should not be allowed to do so.
Note: The Supreme Court, in granting the petition, predicated its ruling upon the statutory principle that adoption statutes, being humane and salutary, should be liberally construed to carry out the beneficent purposes of adoption. The modern trend is to consider adoption not merely as an act to establish a relationship of paternity and filiation, but also as an act which endows a child with legitimate status. (In the Matter of the Adoption of Stephanie Nathy Astorga Garcia, G.R. No. 148311. Mar. 31, 2005)
Q: Giana was born to Andy and Aimee, who at the time of Giana’s birth were not married to each other. While Andy was single at that time, Aimee was still in the process of securing a judicial declaration of nullity on her marriage to her ex-husband. Gianna’s birth certificate, which was signed by both Andy and Aimee, registered the status of Gianna as “legitimate”, her surname carrying that of Andy’s, and that her parents were married to each other.
Can a judicial action for correction of entries in Gianna’s birth certificate be successfully maintained to:
a. Change her status from “legitimate” to
“illegitimate”; and
A: A judicial action cannot be maintained to change the status of Gianna from “legitimate” to
“illegitimate” child of Andy and Aimee. While it is true that Gianna is the biological daughter of Andy and Aimee conceived and born without marriage between them, Gianna is presumed, under the law as the legitimate child of Aimee and her husband.
This filiation may be impugned only by the husband. To correct the status of Gianna in her birth certificate from “legitimate child of Andy and Aimee” to “illegitimate child of Andy and Aimee”
will amount to indirectly impugning her filiation as the child of Aimee’s husband in a proper action.
What cannot be done directly cannot be done indirectly.
b. Change her surname from that of Andy’s to Aimee’s maiden surname?
A: A judicial action to change the surname of Gianna from the surname of Andy to the maiden surname of Aimee is also not allowed. Gianna,
being presumed to be the legitimate child of Aimee’s husband is required by law to be registered under the surname of Aimee’s husband. While it is true that Gianna’s registered surname is erroneous, a judicial action for correction of entry to change the surname of Gianna to that of Aimee’s maiden surname will also be erroneous. A judicial action to correct an entry in the birth certificate is allowed to correct an error and not to commit another error.
Alternative Answers: It may be noted that the problems does not show whether Gianna was born while Aimee was living with her ex-husband.
Neither does it show who filed the judicial action to correct the entries.
If the problem is intended only for purpose of determining whether factual changes are in order, then the answers are:
a. A change from “legitimate” to
“illegitimate” is proper upon proof of lack of marriage between Andy and Aimee.
b. If the child is considered illegitimate, then she should follow the surname of her mother.
Q: Instead of a judicial action, can administrative proceedings be brought for the purpose of making the above corrections?
A: Under R.A. 9048, only typographical errors are allowed to be corrected administratively. The change of status from legitimate to illegitimate is not a typographical error and even assuming that it is, its administrative correction is not allowed under R.A. 9048. Typographical errors involving status, age, citizenship, and gender are expressly excluded from what may be corrected administratively.
The change of the surname is also not allowed administratively. R.A. 9048 provides for an administrative procedure for change of first name only and not for change of surname.
Q: Assuming that Aimee is successful in declaring her former marriage void, and Andy and Aimee subsequently married each other, would Gianna be legitimated?
A: No, Gianna will not be legitimated. While the court may have declared the marriage void ab initio and, therefore, no marriage took place in the eyes of the law, Gianna will still not be legitimated. This is because at the time she was conceived and born her biological parents could not have validly married each other. For their marriage to be valid,
the court must first declare the first marriage null and void. In the problem, Gianna was conceived and born before the court has decreed the nullity of her mother’s previous marriage. (2008 Bar Question)
XVI. ABSENCE
A. PROVISIONAL MEASURES IN CASE OF ABSENCE Q: What is absence?
A: The special status of a person who has left his domicile and thereafter his whereabouts and fate are unknown, it being uncertain whether he is already dead or still alive. (Olaguiviel v. Morada, 63 O.G. 4940)
Q: What are the kinds of absence?
A:
1. Physical Absence 2. Legal Absence
Q: What are the 3 Stages of Absence?
A:
1. Provisional Absence – when a person disappears from his domicile his whereabouts being unknown, without leaving an agent to administer his property 2. Declared Absence – when a person disappears from his domicile and 2 years thereafter have elapsed without any news about him or since the receipt of the last news, or 5 years have elapsed in case he left a person to administer his property 3. Presumptive Death – the absentee is presumed dead (Jurado, 2009)
Q: What is provisional absence?
A:
1. When a person disappears from his domicile 2. His whereabouts are unknown and:
a. he did not leave any agent
b. he left an agent but the agent’s power has expired
Q: What is the remedy of an interested party, a relative or a friend of the absentee to protect the latter's interest?
A: They may petition the Court for the appointment of a representative to represent the absentee in all that may be necessary.
Q: What is the duty of the Court after appointing the representative?
A: The Court shall:
1. Take the necessary measures to safeguard the rights and interests of the absentee.
2. Specify the powers, obligations, and remuneration of the representative.
3. Regulate the powers, obligations and remuneration according to the circumstances by the rules concerning guardians.
Q: What is the order of preference in the appointment of a representative?
A:
1. Spouse present, except, when legally separated.
2. In the absence of spouse, any competent person.
Note: The administrator of the absentee's property shall be appointed in accordance with the same order.
B. DECLARATION OF ABSENCE
Q: What are the requisites for a declaration of absence?
A:
1. The absentee have disappeared from his domicile
2. His whereabouts are not known
3. he has been absent without any news for 2 years, if nobody was left to administer his property or 5 years if somebody was left to administer such property
Q: When may absence be judicially declared?
A: It depends.
1. Where the absentee left no agent to administer his property- after two (2) years without any news about the absentee or since receipt of the last news.
2. Where the absentee has left a person to administer his property- after five (5) years.
Q: Who may ask for the declaration of absence?
A:
1. Spouse present 2. Heirs instituted in a will
3. Relatives who may succeed by intestacy
4. Persons who may have over the property of the absentee some right subordinated to the condition of his death.
Q: When shall the judicial declaration of absence take effect?
A: Six (6) months after its publication in a newspaper of general circulation.
C. ADMINISTRATION OF THE PROPERTY OF THE ABSENTEE
Q: When shall the administration of the property of the absentee cease?
A: ADD
1. When absentee Appears personally or by means of an agent.
2. When Death of the absentee is proved and his testate or intestate heirs appear.
3. When a third person appears, showing by a proper Document that he has acquired the absentee's property by purchase or other title.
D. PRESUMPTION OF DEATH Q: What are the kinds of presumed death?
A:
1. Ordinary presumption- ordinary absence;
absentee disappears under normal conditions without danger or idea of death.
2. Extraordinary presumption- qualified absence;
disappearance with great probability of death.
Q: What are the rules in ordinary presumption of death?
A: In case of:
1. Disappearance upon or before reaching the age of seventy five (75) years:
a. After an absence of seven (7) years -the absentee is presumed dead for all purposes except, succession.
b. After an absence of ten (10) years - the absentee is presumed dead for all purposes including succession.
2. Disappearance at the age of seventy six (76) years or older, after an absence of five (5) years -the absentee is presumed dead for all purposes including succession.
Q: When is the absentee presumed to have died under an ordinary presumption?
A: At the end of the five, seven or ten year period, as the case may be.
Q: Who are presumed dead for all purposes including the division of estate among heirs in case of extraordinary presumption of death?
A: VAD
1. Person on board a Vessel lost during a sea voyage, or an airplane which is missing, who has not been heard of for four (4) years since the loss of the vessel or airplane;
2. Person in the Armed forces who has taken at in war, and has been missing for four (4) years;
3. Person who has been in Danger of death under other circumstances and his existence has not been known for four (4) years.
Q: When is the absentee presumed to have died under an extraordinary presumption?
A: At the time of disappearance. i.e. when the calamity took place.
Q: May a petition for the declaration of presumptive death be the subject of a judicial declaration, if it is the only question upon which a competent court has to pass?
A: No. Under the Civil Code, the presumption of death is established by law and no court declaration is needed for the presumption to arise. Moreover, It is clear that a judicial declaration that a person is presumptively dead, being a presumption juris tantum only, subject to contrary proof, cannot become final. If a judicial decree declaring a person presumptively dead, cannot become final and executory even after the lapse of the reglementary period within which an appeal may be taken, then a petition for such a declaration is useless, unnecessary, superfluous and of no benefit to the petitioner.
Q: Juana married Arturo on January 1973.
However, because the latter was unemployed the spouses constantly argued. Thus, Arturo left the conjugal dwelling on October 1975. Years passed without any word from Arturo. Juana didn’t hear any news of Arturo, his whereabouts or even if he was alive or not. Believing that Arturo was already dead, Juana married Dante on June 1986.
Subsequently, however, Dante's application for naturalization filed with the United States Government was denied because of the subsisting marriage between Juana and Arturo. Hence, on
March, 2007, Juana filed a Petition for declaration of presumptive death of Arturo with the RTC. The RTC dismissed the Petition on the ground that Juana was not able to prove the existence of a well-grounded belief that her husband Arturo was already dead as required under Article 41 of the Family Code.
a. Was the RTC correct in dismissing the petition based on Article 41 of the Family Code?
No. Since the marriages were both celebrated under the auspices of the Civil Code it is the Civil Code that applies to this case not Art. 41 of the FC.
Under the Civil Code, proof of well-founded belief is not required. Juana could not have been expected to comply with the requirement of proof of "well-founded belief" since the FC was not yet in effect at the time of her marriage to Dante. Moreover, the enactment of the FC in 1988 does not change this conclusion. The FC shall have no retroactive effect if it impairs vested rights. To retroactively apply the provisions of the FC requiring Juana to exhibit "well-founded belief" will, ultimately, result in the invalidation of her second marriage, which was valid at the time it was celebrated. Such a situation would be untenable and would go against the objectives that the Family Code wishes to achieve.
b. Will the petition for declaration of presumptive death, therefore, prosper?
No. Under the Civil Code, the presumption of death is established by law and no court declaration is needed for the presumption to arise. For the purposes of the civil marriage law, Art. 83 of the
Civil Code, it is not necessary to have the former spouse judicially declared an absentee. The law only requires that the former spouse has been absent for seven consecutive years at the time of the second marriage, that the spouse present does not know his or her former spouse to be living, that such former spouse is generally reputed to be dead and the spouse present so believes at the time of the celebration of the marriage. Since death is presumed to have taken place by the seventh year of absence, Arturo is to be presumed dead starting October 1982.
Further, the presumption of death cannot be the subject of court proceedings independent of the settlement of the absentee’s estate. In case the presumption of death is invoked independently of such an action or special proceeding there is no right to be enforced nor is there a remedy prayed for by the petitioner against her absent husband.
Neither is there a prayer for the final determination of his right or status or for the ascertainment of a particular fact, for the petition does not pray for a declaration that the petitioner's husband is dead, but merely asks for a declaration that he be presumed dead because he had been unheard from in seven years. In sum, the petition for a declaration that the petitioner's husband is presumptively dead, even if judicially made, would not improve the petitioner's situation, because such a presumption is already established by law. (Valdez v. Republic, G.R. No. 180863, September 8, 2009)
Q: Discuss the distinctions between declaration of presumptive death for purpose of contracting subsequent marriage and opening succession and declaration of absence under Rules of Court.
A: