Gamit ng pangalawang asawa ang apelyido ni mister

Una po sa lahat, ang kasal ay "presumed" na valid. Korte lang po ang makapagsasabi at makapagdedeklara na "invalid" ang isang kasal. Pangalawa, ang paggamit po ng apelyido or surname ay hindi isang bagay na maaaring ipagkait ng isang tao sa ibang tao. Maliban na lang po kung mayroong pagkukunwari at iba pang krimen o aktibidad na maaaring maka-danyos sa ibang tao o sa gubyerno, hindi po puwedeng pigilan ang ibang tao na gamiting ang isang apelyido. Under the present article of our Code, however, the word "may" is used, indicating that the use of the husband's surname by the wife is permissive rather than obligatory. We have no law which provides that the wife shall change her name to that of the husband upon marriage. This is in consonance with the principle that surnames indicate descent. It seems, therefore, that a married woman may use only her maiden name and surname. She has an option, but not a duty, to use the surname of the husband in any of the ways provided by this Article. (Tolentino, Civil Code of the Philippines, Vol. I, p. 724, 1983 ed.)

It is significant to note that Senator Tolentino himself in his commentary on Art. 370 of the Civil Code states that "the wife cannot claim an exclusive right to use the husband's surname. She cannot be prevented from using it; but neither can she restrain others from using it." (Tolentino, Civil Code, 1974 ed., P. 681).

Art. 371 is not applicable to the case at bar because Art. 371 speaks of annulment while the case before us refers to absolute divorce where there is a severance of valid marriage ties. The effect of divorce is more akin to the death of the spouse where the deceased woman continues to be referred to as the Mrs. of her husband even if the latter has remarried rather than to annulment since in the latter case, it is as if there had been no marriage at all.

The private respondent has established that to grant the injunction to the petitioner would be an act of serious dislocation to her. She has given proof that she entered into contracts with third persons, acquired properties and entered into other legal relations using the surname Tolentino. The petitioner, on the other hand, has failed to show that she would suffer any legal injury or deprivation of legal rights inasmuch as she can use her husband's surname and be fully protected in case the respondent uses the surname Tolentino for illegal purposes.

There is no usurpation of the petitioner's name and surname in this case so that the mere use of the surname Tolentino by the Private respondent cannot be said to have injured the petitioner's rights. "The usurpation of name implies some injury to the interests of the owner of the name. It consists in the possibility of confusion of Identity ... between the owner and the usurper. It exists when a person designates himself by another name ... The following are the elements of usurpation of a name: 1) there is an actual use of another's name by the defendant; 2) the use is unauthorized; and 3) the use of another's name is to designate personality or Identify a person" (Tolentino, supra, p. 685). None of these elements exists in the case at bar and neither is there a claim by the petitioner that the private respondent impersonated her. In fact, it is of public knowledge that Constancia Tolentino is the legal wife of Arturo Tolentino so that all invitations for Senator and Mrs. Tolentino are sent to Constancia. Consuelo never represented herself after the divorce as Mrs. Arturo Tolentino but simply as Mrs. Consuelo David-Tolentino. The private respondent has legitimate children who have every right to use the surname Tolentino. She could not possibly be compelled to use the prefix "Miss" or use the name Mrs. David, different from the surnames of her children. The records do not show that she has legally remarried.

In Silva, et al. v. Peralta (110 Phil. 57) cited by the petitioner, it was not the mere use of the surname that was enjoined but the defendant's representation that she was the wife of Saturnino Silva. There was, therefore, a usurpation of the wife's status which is absent in the case at bar. (G.R. No. L-41427; June 10, 1988)