CHAPTER 16: USE OF NAMES
PRINCIPLES AND CASES IN PRIVATE INTERNATIONAL LAW:
A PROCEDURAL APPROACH
-oOo-
MARK ANGELO S. DELA PEÑA
To cite this online book, please use the following:
Dela Peña. 2023. "Principles and Cases in Private International Law: A Procedural Approach." Published by Project Jurisprudence - Philippines. Published: September 17, 2023. Link: [Insert link] Last accessed: [Insert date of access].
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CHAPTER 16:
USE OF NAMES
Legitimate and legitimated children shall principally use the surname of the father.[1]
The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and. as far as possible, the right to know and be cared for by his or her parents. This is according to Article 7 of the United Nations Convention on the Rights of the Child (UNCRC).[2]
The use of name is governed by a person’s national law. A name is a status, especially insofar as Philippine laws are concerned. Names are entered into the national civil registry and, because of this, the State takes an interest in the preservation of such records. In fact, Article 376 of the New Civil Code of the Philippines states that no person can change his name or surname without judicial authority. Modifying this policy, however, a recent statute states: “No entry in a civil register shall be changed or corrected without a judicial order, except for clerical or typographical errors and change of first name or nickname which can be corrected or changed by the concerned city or municipal civil registrar or consul general in accordance with the provisions of this Act and its implementing rules and regulations.”[3]
The name through which one is known is generally, however, not chosen by the individual who bears it. Rather, it is chosen by one's parents. In this sense, the choice of one's name is not a product of the exercise of autonomy of the individual to whom it refers. In view of the State's interest in names as markers of one's identity, the law requires that these labels be registered. Understandably, in some cases, the names so registered or other aspects of one's identity that pertain to one's name are not reflected with accuracy in the Certificate of Live Birth filed with the civil registrar. Changes to one's name, therefore, can be the result of either one of two (2) motives. The first, as an exercise of one's autonomy, is to change the appellation that one was given for various reasons. The other is not an exercise to change the label that was given to a person; it is simply to correct the data as it was recorded in the Civil Registry.[4]
In the conflict of laws, the question of jurisdiction may arise in regard to a person’s name. Being a status, a person’s name is governed, of course, by the national law of his own country. For Philippine citizens, it is the law of the Philippines that governs their use of name. The courts of a foreign country, thus, are without power to decide matters on the use of names of Filipinos as reflected in the records of the Philippine civil registry, most commonly known as the Philippine Statistics Office (PSA).[5]
Reading Article 364 of the New Civil Code of the Philippines together with the Philippine State's declared policy[6] to ensure the fundamental equality of women and men before the law, the Supreme Court through the learned hand of Justice Leonen has recently declared that a legitimate child is entitled to use the surname of either parent as a last name.[7] Indeed, the provision states that legitimate children shall “principally” use the surname of the father, but “principally” does not mean “exclusively.” This gives ample room to incorporate into Article 364 the State policy of ensuring the fundamental equality of women and men before the law, and no discernible reason to ignore it.[8]
FOREIGN COURT’S ORDER
TO CHANGE FILIPINO’S NAME
The student may be curious regarding a situation in which a foreign court, say a Canadian court, orders the change of the name of a Filipino. To provide further illustration, assume that a Filipino went to Canada and acquired a permanent residence status therein. Wanting to blend in smoothly in his new community, he petitioned the foreign court to allow a change of his name from “Mario Reyes Batumbakal” to “Mark Reyes Stonesteel.” Assume also that the Canadian court granted his petition.
There are two possible questions regarding the example problem above. First is whether or what the effect is of the foreign judgment insofar as Philippine laws are concerned. Second is whether a petition for recognition and enforcement of such foreign judgment should be granted by a Filipino court.
As to the first question, it must be recalled that a person’s name is one of the entries registered in the civil registry of the Philippine State. In the same way that death, birth and marriages are registered therein, a Filipino’s name is solemnly enshired in said registry and it is only through judicial authority or decree that the same can be changed.[9] Moreover, it is safe to argue that a person’s name is one of those mentioned under Article 15 of the New Civil Code of the Philippines as governed by a person’s national law, i.e., his status, condition and legal capacity. A name is a status in which the Philippine State has an interest. In fact, the Supreme Court has ruled that the State has an interest in the names borne by individuals and entities for purposes of identification. A change of name is a privilege, not a right. Petitions for change of name are controlled by statutes.[10] Therefore, it is also logical to say that a foreign court has no jurisdiction over the res in a petition for change of name of a Filipino.
Anent the second question and following the discussion in the preceding paragraph, a petition for recognition and enforcement of a foreign judgment ordering the change of name of a Filipino should be denied by a Philippine court on the ground of lack of jurisdiction over the res.
USE OF SURNAME BY
ADOPTED CHILD
An adopted child shall bear the surname of the adopter.[11]
Adoption and the use of name of the adopted child are both matters that go into a person’s status and condition. Also, both adoption and use of name of a Filipino are governed by Philippine laws.
WIDOW’S USE OF
SURNAME
A widow may use the deceased husband's surname as though he were still living, in accordance with Article 370.[12]
Under Philippine civil law, the use of the husband’s surname during the marriage, after dissolution of the marriage, and after the death of the husband is permissive and not obligatory, except in case of legal separation.[13] According to Tolentino, there is 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 [law].”[14]
When a woman marries a man, she need not apply for judicial authority to use her husband’s name by prefixing the word “MRS,” which means “the wife of,” before her husband’s full name or by adding her husband’s surname to her maiden first name.[15] For example, if Maria Reyes marries Pontio Arcega, she is allowed to use the names: “Mrs. Pontio Arcega” or “Ms. Maria Arcega,” among others. The law grants her such right.[16] Similarly, when the marriage ties or vinculum no longer exists as in the case of the death of the husband or the dissolution of marriage, the no-longer-wife need not seek judicial confirmation of the change in her civil status in order to revert to her maiden name because, as mentioned, the use of her former husband’s name is optional and not obligatory to her.[17]
In the case of Yasin v. Judge of Shari'a District Court,[18] petitioner married her husband and opted not to change her name but only her civil status. According to the Supreme Court, she was not required to secure judicial authority to use the surname of her husband after the marriage as no law requires it.
No person can change his name or surname without judicial authority.[19]
Article 376 of the New Civil Code of the Philippines hints at two things: (a) the interest or public policy of the State in the use of names of persons; and, (b) the jurisdiction of Philippine courts over the res, i.e., the use of name as reflected in the civil registry.
In the words of Justice Marvic Leonen, names are “labels for one’s identity. They facilitate social interaction, including the allocation of rights and determination of liabilities. It is for this reason that the State has an interest in one’s name.”[20]
On changes of first name, Republic Act No. 10172,[21] which amended Republic Act No. 9048,[22] is helpful in identifying the nature of the change or determination sought in a person’s name.
Republic Act No. 10172 defines a clerical or typographical error as a recorded mistake, “which is visible to the eyes or obvious to the understanding.” Thus, the law says:
“Section 2. Definition of Terms. — As used in this Act, the following terms shall mean:
“(3) “Clerical or typographical error” refers to a mistake committed in the performance of clerical work in writing, copying, transcribing or typing an entry in the civil register that is harmless and innocuous, such as misspelled name or misspelled place of birth, mistake in the entry of day and month in the date of birth or the sex of the person or the like, which is visible to the eyes or obvious to the understanding, and can be corrected or changed only by reference to other existing record or records: Provided, however, That no correction must involve the change of nationality, age, or status of the petitioner.”
Likewise, Republic Act No. 9048, the prior law amended by Republic Act No. 10172, states the following:
“Section 2. Definition of Terms. — As used in this Act, the following terms shall mean:
“(3) “Clerical or typographical error” refers to a mistake committed in the performance of clerical work in writing, copying, transcribing or typing an entry in the civil register that is harmless and innocuous, such as misspelled name or misspelled place of birth or the like, which is visible to the eyes or obvious to the understanding, and can be corrected or changed only by reference to other existing record or records: Provided, however, That no correction must involve the change of nationality, age, status or sex of the petitioner.”
By qualifying the definition of a clerical, typographical error as a mistake “visible to the eyes or obvious to the understanding,” the law recognizes that there is a factual determination made after reference to and evaluation of existing documents presented. Thus, corrections may be made even though the error is not typographical if it is “obvious to the understanding,” even if there is no proof that the name or circumstance in the birth certificate was ever used.[23]
In the case of Republic v. Gallo,[24] Michelle Soriano Gallo's (Gallo) filed a petition for correction of entry in her certificate of live birth. Gallo claimed that she had never been known as “Michael Soriano Gallo.” She has always been female. Her parents, married on May 23, 1981, have never changed their names. For her, in her petition before the Regional Trial Court (RTC), her certificate of live birth contained errors, which should be corrected. For her, she was not changing the name that was given to her; she was merely correcting its entry. To accurately reflect these facts in her documents, Gallo prayed before the court to allow the correction of her name from “Michael” to “Michelle” and of her biological sex from “male” to “female” under Rule 108 of the Rules of Court. In addition, Gallo asked for the inclusion of her middle name, “Soriano”; her mother's middle name, “Angangan”; her father's middle name, “Balingao”; and her parent's marriage date, May 23, 1981, in her Certificate of Live Birth, as these were not recorded. As proof, she attached to her petition copies of her diploma, voter's certification, official transcript of records, medical certificate, mother's birth certificate, and parents' marriage certificate.
Citing Republic v. Mercadera,[25] the Office of the Solicitor General (OSG) argued that “only clerical, spelling, typographical and other innocuous errors in the civil registry may be raised” in petitions for correction under Rule 108. Thus, the correction must only be for a patently misspelled name. As “Michael” could not have been the result of misspelling “Michelle,” the Solicitor General contended that the case should fall under Rule 103 for it contemplates a substantial change. The Supreme Court ruled in favor of Gallo and said: “WHEREFORE, premises considered, the petition is DENIED. The April 29, 2013 Decision of the Court of Appeals in CA-G.R. CV No. 96358 is AFFIRMED. The Petition for Correction of Entry in the Certificate of Live Birth of Michelle Soriano Gallo is GRANTED. This Court directs that the Certificate of Live Birth of Michelle Soriano Gallo be corrected as follows:
1) Correct her first name from “Michael” to “Michelle”;
2) Correct her biological sex from “Male” to “Female”;
3) Enter her middle name as “Soriano”;
4) Enter the middle name of her mother as “Angangan”;
5) Enter the middle name of her father as “Balingao”; and
6) Enter the date of her parents' marriage as “May 23, 1981.”
SO ORDERED.”
The Supreme Court said that Rule 103 of the Rules of Court does not apply to Gallo’s case. The change in the entry of Gallo’s biological sex is governed by Rule 108 of the Rules of Court while Republic Act No. 9048 applies to all other corrections sought. Under Article 407 of the Civil Code, the books in the Civil Register include “acts, events and judicial decrees concerning the civil status of persons,” which are prima facie evidence of the facts stated there.[26] Entries in the register include births, marriages, deaths, legal separations, annulments of marriage, judgments declaring marriages void from the beginning, legitimations, adoptions, acknowledgments of natural children, naturalization, loss or recovery of citizenship, civil interdiction, judicial determination of filiation, voluntary emancipation of a minor, and changes of name.[27]
The governing law on changes of first name is currently Republic Act No. 10172, which amended Republic Act No. 9048. Prior to these laws, the controlling provisions on changes or corrections of name were Articles 376 and 412 of the New Civil Code of the Philippines. Article 376 states the need for judicial authority before any person can change his or her name. On the other hand, Article 412 provides that judicial authority is also necessary before any entry in the civil register may be changed or corrected. Under the old rules, a person would have to file an action in court under Rule 103 for substantial changes in the given name or surname provided they fall under any of the valid reasons recognized by law, or Rule 108 for corrections of clerical errors. This requirement for judicial authorization was justified to prevent fraud and allow other parties, who may be affected by the change of name, to oppose the matter, as decisions in these proceedings bind the whole world.[28]
Applying Article 412 of the Civil Code, a person desiring to change his/her name altogether must file a petition under Rule 103 with the Regional Trial Court (RTC), which will then issue an order setting a hearing date and directing the order’s publication in a newspaper of general circulation.[29] After finding that there is proper and reasonable cause to change the name, the Regional Trial Court (RTC) may grant the petition and order its entry in the civil register.[30] On the other hand, Rule 108 applies when the person is seeking to correct clerical and innocuous mistakes in his or her documents with the civil register.[31] It also governs the correction of substantial errors in the entry of the information enumerated in Section 2 of Rule 108 of the Rules of Court, and those affecting the civil status, citizenship, and nationality of a person.[32] The proceedings under this rule may either be summary, if the correction pertains to clerical mistakes, or adversary, if it pertains to substantial errors.
Following the procedure in Rule 103, Rule 108 also requires a petition to be filed before the Regional Trial Court. The trial court then sets a hearing and directs the publication of its order in a newspaper of general circulation in the province. After the hearing, the trial court may grant or dismiss the petition and serve a copy of its judgment to the Civil Registrar. However, Republic Act No. 9048[33] amended Articles 376 and 412 of the Civil Code, effectively removing clerical errors and changes of the name outside the ambit of Rule 108 and putting them under the jurisdiction of the civil register.[34]
In 2012, Republic Act No. 9048 was amended by Republic Act No. 10172. In addition to the change of the first name, the day and month of birth, and the sex of a person may now be changed without judicial proceedings. Republic Act No. 10172 clarifies that these changes may now be administratively corrected where it is patently clear that there is a clerical or typographical mistake in the entry. It may be changed by filing a subscribed and sworn affidavit with the local civil registry office of the city or municipality where the record being sought to be corrected or changed is kept.[35]
As a result of these recent changes in the law, it is the civil registrar who has primary jurisdiction over a petition for correction of clerical errors in a person’s certificate of live birth, not the Regional Trial Court (RTC). Only if the petition has been denied by the local city or municipal civil registrar can the Regional Trial Court (RTC) take cognizance of her case. In Republic v. Sali,[36] Sali’s petition was not for a change of name as contemplated under Rule 103 of the Rules but for correction of entries under Rule 108. What she sought was the correction of clerical errors which were committed in the recording of her name and birth date. The Supreme Court held in the Sali case that not all alterations allowed in one’s name are confined under Rule 103 and that corrections for clerical errors may be set right under Rule 108. The evidence presented by Sali showed that, since birth, she had been using the name “Lorena.” Thus, it is apparent that she never had any intention to change her name. What she sought was simply the removal of the clerical fault or error in her first name, and to set right the same to conform to the name she grew up with.
Nevertheless, at the time Sali's petition was filed, Republic Act No. 9048 was already in effect. The petition for change of first name may be allowed, among other grounds, if the new first name has been habitually and continuously used by the petitioner and he or she has been publicly known by that first name in the community. The local city or municipal civil registrar or consul general has the primary jurisdiction to entertain the petition. It is only when such petition is denied that a petitioner may either appeal to the civil registrar general or file the appropriate petition with the proper court. It was improper for Sali to file her petition for correction in the Regional Trial Court (RTC) because the remedy should have been administrative, i.e., filing of the petition with the local civil registrar concerned. Sali should have exhausted all administrative remedies before resorting to the judicial stream.[37]
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[1] Article 364 of the New Civil Code of the Philippines.
[2] Unicef (Date Unspecified). “Convention on the Rights of the Child.” https://www.unicef.org/media/52626/file. Last accessed: September 04, 2023.
[3] Section 1 of Republic Act No. 9048, March 22, 2001.
[4] Republic v. Gallo, G.R. No. 207074, January 17, 2018, 823 Phil. 1090.
[5] Section 5. Philippine Statistics Authority. – There shall be created a Philippine Statistics Authority, hereinafter referred to as the PSA, attached to the National Economic and Development Authority (NEDA) for purposes of policy coordination. It shall be comprised of the PSA Board and offices on sectoral statistics, censuses and technical coordination, civil registration and central support and field statistical services. (Republic Act No. 10625)
[6] Section 2, Republic Act No. 7192 (1992). Women in Development and Nation Building Act.
[7] Alanis III v. Court of Appeals, G.R. No. 216425, November 11, 2020.
[8] Alanis III v. Court of Appeals, G.R. No. 216425, November 11, 2020.
[9] Article 376 of the New Civil Code of the Philippines states: “No person can change his name or surname without judicial authority.”
[10] Silverio v. Republic, 562 Phil. 953 (2007) [Per J. Corona, First Division].
[11] Article 365 of the New Civil Code of the Philippines.
[12] Article 373 of the New Civil Code of the Philippines.
[13] Yasin v. Judge of Shari'a District Court, G.R. No. 94986, February 23, 1995.
[14] Tolentino, Civil Code of the Philippines, Vol. 1, p. 724, 1983 ed.
[15] Yasin v. Judge of Shari'a District Court, G.R. No. 94986, February 23, 1995.
[16] Art. 370 of the New Civil Code of the Philippines.
[17] Tolentino, Civil Code, p. 725, 1983 ed.; Article 373 of the New Civil Code of the Philippines.
[18] G.R. No. 94986, February 23, 1995.
[19] Article 376 of the New Civil Code of the Philippines.
[20] Republic v. Gallo, G.R. No. 207074, January 17, 2018.
[21] Rep. Act No. 10172 (2012), Authority to Correct Certain Clerical or Typographical Errors Appearing in the Civil Register Without Need of a Judicial Order.
[22] Rep. Act No. 9048 (2001), Authority to Correct Clerical or Typographical Error and Change of First Name or Nickname in Civil Register.
[23] Republic v. Gallo, G.R. No. 207074, January 17, 2018.
[24] G.R. No. 207074, January 17, 2018.
[25] 652 Phil. 195, 205 (2010) [Per J. Mendoza, Second Division].
[26] Article 410 of the New Civil Code of the Philippines.
[27] Article 408 of the New Civil Code of the Philippines.
[28] Republic v. Mercadera, 652 Phil. 195, 205 (2010) [Per J. Mendoza, Second Division].
[29] Sections 1 and 3 of Rule 103 of the Rules of Court.
[30] Sections 5 and 6 of Rule 103 of the Rules of Court.
[31] Republic v. Mercadera, 652 Phil. 195, 207-209 (2010) [Per J. Mendoza, Second Division].
[32] Republic v. Mercadera, 652 Phil. 195, 207 (2010) [Per J. Mendoza, Second Division].
[33] The law was enacted on March 22, 2001 and became effective on April 22, 2001.
[34] Republic v. Mercadera, 652 Phil. 195 (2010) [Per J. Mendoza, Second Division].
[35] Republic v. Gallo, G.R. No. 207074, January 17, 2018.
[36] G.R. No. 206023, April 3, 2017.
[37] Republic v. Sali, G.R. No. 206023, April 3, 2017.
