Change Of Name.docx

Change of Name 1. ELEOSIDA V. CIVIL REGISTRAR OF QC

FIRST DIVISION

[G.R. No. 130277. May 9, 2002]

MA. LOURDES BARRIENTOS ELEOSIDA, for and in behalf of her minor child, CHARLES CHRISTIAN ELEOSIDA, petitioner, vs. LOCAL CIVIL REGISTRAR OF QUEZON CITY, and CARLOS VILLENA BORBON, respondents. DECISION PUNO, J.: This is a petition for review on certiorari of the Order[1] of the Regional Trial Court of Quezon City, Branch 89, which dismissed motu proprio the petition of Ma. Lourdes Eleosida to correct some entries in the birth certificate of her son, Charles Christian. The birth certificate shows, among others, that the child's full name is Charles Christian Eleosida Borbon. He was born on May 24, 1992 to Ma. Lourdes Barrientos Eleosida and Carlos Villena Borbon. The birth certificate also indicates that the child's parents were married on January 10, 1985 in Batangas City. [2] On January 30, 1997, petitioner Ma. Lourdes Eleosida filed a petition before the Regional Trial Court of Quezon City seeking to correct the following entries in the birth certificate of her son, Charles Christian: first, the surname "Borbon" should be changed to "Eleosida;" second, the date of the parents' wedding should be left blank; and third, the informant's name should be "Ma. Lourdes B. Eleosida," instead of "Ma. Lourdes E. Borbon." In support of her petition, petitioner alleged that she gave birth to her son out of wedlock on May 24, 1992; that she and the boy's father, Carlos Borbon, were never married; and that the child is therefore illegitimate and should follow the mother's surname. The petition impleaded the Local Registrar of Quezon City and Carlos Villena Borbon as respondents. [3] On April 23, 1997, the trial court issued a notice of hearing stating: Verified petition having been filed by petitioner Ma. Lourdes Barrientos Eleosida, praying that the entries in the Certificate of Live Birth of her minor child, Charles Christian Eleosida Borbon, be changed and/or corrected, such that, his last name BORBON be deleted and instead place therein the name ELEOSIDA, which is the surname of his mother-petitioner; the entry "January 10, 1985 - Batangas City", be likewise deleted, since the petitioner and respondent Carlos Villena Borbon, at the time of the minor's birth were not legally married; and the surname BORBON of petitioner Ma. Lourdes E. Borbon under the column Informant, be also deleted; NOTICE IS HEREBY GIVEN, that this petition is set for hearing on June 26, 1997 at 8:30 o'clock in the morning, in the Session Hall of this Court sitting at the Ground Floor, Room 118, Hall of Justice, Quezon City, which is ordered published once a week for three (3) consecutive weeks, in a newspaper of general circulation and published in Metro

Manila, to be selected by raffle, at the expense of the petitioner, at which date, time and place, the petitioner shall appear and prove her petition, in that all other persons having or claiming any interest thereon shall also appear and showcause why, if any, they have, the petition shall not be granted. Let copies of this notice be furnished the petitioner, and together with copies of the petition, respondent Carlos Villena Borbon; the Offices of the Local Civil Registrar of Quezon City and the Solicitor General, who are given fifteen (15) days from notice of the petition, or from the last date of publication of such notice, within which to file their opposition thereto, if any. In the event that the Solicitor General may not be able to appear on the scheduled hearing, to designate the City Prosecutor of Quezon City to appear for and in behalf of the State. SO ORDERED.[4] On June 26, 1997, the trial court issued another order setting the date for the presentation of evidence on July 23, 1997. It stated: Considering that there is no opposition filed despite notice to the Solicitor General as contained in the notice of hearing dated April 23, 1997 requiring that office to file their opposition, if any, to the petition for correction of entries in the birth certificate of minor child Charles Christian Eleosida, the petitioner will be allowed to present compliance with the jurisdictional requirements and at the same time initially present evidence on July 23, 1997, at 8:30 o'clock in the morning.[5] On August 25, 1997, the trial court motu proprio dismissed the petition for lack of merit. It ruled: It is an established jurisprudence that, only CLERICAL ERRORS OF A HARMLESS AND INNOCUOUS NATURE like: misspelled name, occupation of the parents, etc., may be the subject of a judicial order (contemplated under Article 412 of the New Civil Code), authorizing changes or corrections and: NOT as may affect the CIVIL STATUS, NATIONALITY OR CITIZENSHIP OF THE PERSONS INVOLVED. In the present case, it is very clear that the changes desired by the petitioner will ultimately affect the CIVIL STATUS OF CHARLES CHRISTIAN, as she wants the Court to direct the Civil Registrar of Quezon City to substitute her maiden name, ELEOSIDA, with that of BORBON; to delete the information supplied in ITEM 12, respecting the date and place of marriage of parents, on the ground that she was never married to respondent CARLOS VILLENA BORBON and amend the information in ITEM 14, respecting the name of the informant, from MA. LOURDES E. BORBON to MA. LOURDES B. ELEOSIDA, and is indicative of petitioner's intention and device to establish that CHARLES CHRISTIAN's civil status as ILLEGITIMATE. With the petition's ultimate purpose on the part of petitioner to secure judicial order, which would authorize a change in the civil status of CHARLES CHRISTIAN, this Court, finds the action improper. The matters desired to be cancelled and/or changed by petitioner cannot be considered falling under the ambit of the words clerical errors of a harmless and innocuous nature. WHEREFORE, for LACK OF MERIT, the petition is now MOTU PROPIO (sic) dismissed. [6] Petitioner filed the instant petition for review raising the issue of whether corrections of entries in the certificate of live birth pursuant to Article 412 of the Civil Code, in relation to Rule 108 of the Rules of Court may be allowed even if the errors to be corrected are substantial and not merely clerical errors of a harmless and innocuous nature. [7]

The Court required the respondents to comment on the petition. The Office of the Solicitor General (OSG) filed a Manifestation in Lieu of Comment. The OSG submitted that even substantial errors in the civil registry may be corrected provided that the parties aggrieved by the error avail themselves of the appropriate adversary proceeding. Thus it argued that even if the petition seeks the correction and eventual change in the civil status of Charles Christian, the same can be ordered by the court as long as all the parties who may be affected by the entries are notified and represented.[8] Respondent Carlos Borbon, on the other hand, failed to submit his comment on the petition despite several notices from this Court. Hence, on January 24, 2001, the Court dispensed with the filing of respondent Borbon's comment and gave due course to the petition. [9] We find merit in the petition. Rule 108 of the Revised Rules of Court provides the procedure for cancellation or correction of entries in the civil registry. The proceedings under said rule may either be summary or adversary in nature. If the correction sought to be made in the civil register 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. [10] This is our ruling in Republic vs. Valencia[11] where we held that even substantial errors in a civil registry may be corrected and the true facts established under Rule 108 provided the parties aggrieved by the error avail themselves of the appropriate adversary proceeding. 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 party's case, and where the evidence has been thoroughly weighed and considered. The Court further laid down the procedural requirements to make the proceedings under Rule 108 adversary, thus: The pertinent sections of Rule 108 provide: 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 in 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, file his opposition thereto. Thus, the persons who must be made parties to a proceeding concerning the cancellation or correction of an entry in the civil register are--(1) the civil registrar, and (2) all persons who have or claim any interest which would be affected thereby. Upon the filing of the petition, it becomes the duty of the court to--(1) issue an order fixing the time and place for the hearing of the petition, and (2) cause the order for hearing to be published once a week for three (3) consecutive weeks in a newspaper of general circulation in the province. The following are likewise entitled to oppose the petition:--(1) the civil registrar, and (2) any person having or claiming any interest under the entry whose cancellation or correction is sought. If all these procedural requirements have been followed, a petition for correction and/or cancellation of entries in the record of birth even if filed and conducted under Rule 108 of the Revised Rules of Court can no longer be described as 'summary.' xxx[12]

It is true in the case at bar that the changes sought to be made by petitioner are not merely clerical or harmless errors but substantial ones as they would affect the status of the marriage between petitioner and Carlos Borbon, as well as the legitimacy of their son, Charles Christian. Changes of such nature, however, are now allowed under Rule 108 in accordance with our ruling in Republic vs. Valencia provided that the appropriate procedural requirements are complied with. The records show that upon receipt of the petition, the trial court issued a notice of hearing setting the hearing on June 26, 1997 at 8:30 in the morning at Room 118, Hall of Justice, Quezon City. The trial court likewise ordered the publication of said notice once a week for three (3) consecutive weeks in a newspaper of general circulation and its posting in selected places in Metro Manila. The notice stated that the petitioner shall prove her petition during said hearing and all other persons having or claiming any interest thereon shall also appear and show if there is any reason why the petition should not be granted. Respondents Carlos Villena Borbon, the Local Civil Registrar of Quezon City and the Solicitor General were all furnished with a copy of the notice of hearing together with a copy of the petition. On June 26, 1997, the trial court issued a second order giving the petitioner an opportunity to show compliance with the jurisdictional requirements and to present evidence during the hearing set on July 23, 1997. The foregoing satisfy all the requirements of Rule 108 to make it an adversary proceeding. It was therefore an error for the trial court to dismiss the petition motu proprio without allowing the petitioner to present evidence to support her petitionand all the other persons who have an interest over the matter to oppose the same. IN VIEW WHEREOF, the petition is GRANTED and the Order dated August 25, 1997 of the RTC of Quezon City, Branch 89, subject of the petition at bar is set aside. The case is REMANDED to the court a quo for further proceedings. SO ORDERED. Davide, Jr., C.J., (Chairman), Kapunan, Ynares-Santiago, and Austria-Martinez, JJ., concur.

2. REPUBLIC V. KHO

SECOND DIVISION

REPUBLIC OF THE PHILIPPINES,

G.R. No. 170340

Petitioner, Present: QUISUMBING,* J., Chairperson - versus -

CARPIO,** CARPIO MORALES, TINGA, and VELASCO, JR., JJ.

CARLITO I. KHO, MICHAEL KHO, MERCY NONA KHO-FORTUN, HEDDY MOIRA KHO-

PROMULGATED:

SERRANO, KEVIN DOGMOC KHO (Minor), and KELLY DOGMOC KHO (Minor), Respondents. June 29, 2007 x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x DECISION CARPIO MORALES, J.: Challenged via petition for review on certiorari is the October 27, 2005 Decision[1] of the Court of Appeals (CA) in CAG.R. CV No. 78124 which affirmed the September 4, 2002 Decision [2] of the Regional Trial Court (RTC) of Butuan City, Branch 5 granting the prayer of respondents Carlito I. Kho (Carlito), Michael Kho, Mercy Nona Kho-Fortun, and Heddy Moira Kho-Serrano for the correction of entries in their birth certificates as well as those of Carlitos minor children Kevin and Kelly Dogmoc Kho. The undisputed facts are as follows: On February 12, 2001, Carlito and his siblings Michael, Mercy Nona and Heddy Moira filed before the RTC of Butuan City a verified petition for correction of entries in the civil registry of Butuan City to effect changes in their respective birth certificates. Carlito also asked the court in behalf of his minor children, Kevin and Kelly, to order the correction of some entries in their birth certificates. In the case of Carlito, he requested the correction in his birth certificate of the citizenship of his mother to Filipino instead of Chinese, as well as the deletion of the word married opposite the phrase Date of marriage of parents because his parents, Juan Kho and Epifania Inchoco (Epifania), were allegedly not legally married. The same request to delete the married status of their parents from their respective birth certificates was made by Carlitos siblings Michael, Mercy Nona, and Heddy Moira. With respect to the birth certificates of Carlitos children, he prayed that the date of his and his wifes marriage be corrected from April 27, 1989 to January 21, 2000, the date appearing in their marriage certificate. The Local Civil Registrar of Butuan City was impleaded as respondent. On April 23, 2001, Carlito et al. filed an Amended Petition [3] in which it was additionally prayed that Carlitos second name of John be deleted from his record of birth; and that the name and citizenship of Carlitos father in his (Carlitos) marriage certificate be corrected from John Kho to Juan Kho and Filipino to Chinese, respectively. As required, the petition was published for three consecutive weeks [4] in Mindanao Daily Patrol-CARAGA, a newspaper of general circulation, after which it was set for hearing on August 9, 2001. In a letter of June 18, 2001 addressed to the trial court, the city civil registrar[5] stated her observations and suggestions to the proposed corrections in the birth records of Carlito and his siblings but interposed no objections to the other amendments.

On the scheduled hearing of the petition on August 9, 2001, only the counsel for respondents appeared as the Office of the Solicitor General (OSG) had yet to enter its appearance for the city civil registrar. The trial court thus reset the hearing to October 9, 2001.[6] On September 14, 2001,[7] the OSG entered its appearance with an authorization to the city prosecutor of Butuan City to appear in the case and render assistance to it (the OSG). On January 31, 2002, respondents presented documentary evidence showing compliance with the jurisdictional requirements of the petition. They also presented testimonial evidence consisting of the testimonies of Carlito and his mother, Epifania. During the same hearing, an additional correction in the birth certificates of Carlitos children was requested to the effect that the first name of their mother be rectified from Maribel to Marivel. By Decision[8] of September 4, 2002, the trial court directed the local civil registrar of Butuan City to correct the entries in the record of birth of Carlito, as follows: (1) change the citizenship of his mother from Chinese to Filipino; (2) delete John from his name; and (3) delete the word married opposite the date of marriage of his parents. The last correction was ordered to be effected likewise in the birth certificates of respondents Michael, Mercy Nona, and Heddy Moira. Additionally, the trial court ordered the correction of the birth certificates of the minor children of Carlito to reflect the date of marriage of Carlito and Marivel Dogmoc (Marivel) as January 21, 2000, instead of April 27, 1989, and the name Maribel as Marivel. With respect to the marriage certificate of Carlito and Marivel, the corrections ordered pertained to the alteration of the name of Carlitos father from John Kho to Juan Kho and the latters citizenship from Filipino to Chinese. Petitioner, Republic of the Philippines, appealed the RTC Decision to the CA, faulting the trial court in granting the petition for correction of entries in the subject documents despite the failure of respondents to implead the minors mother, Marivel, as an indispensable party and to offer sufficient evidence to warrant the corrections with regard to the questioned married status of Carlito and his siblings parents, and the latters citizenship. Petitioner also faulted the trial court for ordering the change of the name Carlito John Kho to Carlito Kho for non-compliance with jurisdictional requirements for a change of name under Rule 103 of the Rules of Court. By the assailed Decision of October 27, 2005, the CA denied petitioners appeal and affirmed the decision of the trial court. The CA found that Rule 108 of the Revised Rules of Court, which outlines the proper procedure for cancellation or correction of entries in the civil registry, was observed in the case. Regarding Carlitos minor children Kevin and Kelly, the appellate court held that the correction of their mothers first name from Maribel to Marivel was made to rectify an innocuous error. As for the change in the date of the marriage of Carlito and Marivel, albeit the CA conceded that it is a substantial alteration, it held that the date would not affect the minors filiation from legitimate to illegitimate considering

that at the time of their respective births in 1991 and 1993, their father Carlitos first marriage was still subsisting as it had been annulled only in 1999. In light of Carlitos legal impediment to marry Marivel at the time they were born, their children Kevin and Kelly were illegitimate. It followed, the CA went on to state, that Marivel was not an indispensable party to the case, the minors having been represented by their father as required under Section 5 of Rule 3 [9] of the Revised Rules of Court. Further, the CA ruled that although Carlito failed to observe the requirements of Rule 103 of the Rules of Court, he had complied nonetheless with the jurisdictional requirements for correction of entries in the civil registry under Rule 108 of the Rules of Court. The petition for correction of entry in Carlitos birth record, it noted, falls under letter o of the enumeration under Section 2 of Rule 108. In the present petition, petitioner contends that since the changes sought by respondents were substantial in nature, they could only be granted through an adversarial proceeding in which indispensable parties, such as Marivel and respondents parents, should have been notified or impleaded. Petitioner further contends that the jurisdictional requirements to change Carlitos name under Section 2 of Rule 103 of the Rules of Court were not satisfied because the Amended Petition failed to allege Carlitos prior threeyear bona fide residence in Butuan City, and that the title of the petition did not state Carlitos aliases and his true name as Carlito John I. Kho. Petitioner concludes that the same jurisdictional defects attached to the change of name of Carlitos father. The petition fails. It can not be gainsaid that the petition, insofar as it sought to change the citizenship of Carlitos mother as it appeared in his birth certificate and delete the married status of Carlitos parents in his and his siblings respective birth certificates, as well as change the date of marriage of Carlito and Marivel involves the correction of not just clerical errors of a harmless and innocuous nature.[10] Rather, the changes entail substantial and controversial amendments. For the change involving the nationality of Carlitos mother as reflected in his birth certificate is a grave and important matter that has a bearing and effect on the citizenship and nationality not only of the parents, but also of the offspring.[11] Further, the deletion of the entry that Carlitos and his siblings parents were married alters their filiation from legitimate to illegitimate, with significant implications on their successional and other rights. Clearly, the changes sought can only be granted in an adversary proceeding. Labayo-Rowe v. Republic[12] explains the raison d etre: x x x. The philosophy behind this requirement lies in the fact that the books making up the civil register and all documents relating thereto shall be prima facie evidence of the facts therein contained. If the entries in the civil register could be corrected or changed through mere summary proceedings and not through appropriate action wherein all parties who may be affected by the entries are notified or represented, the door to fraud or other mischief would be

set open, the consequence of which might be detrimental and far reaching. x x x (Emphasis supplied)

In Republic v. Valencia,[13] however, this Court ruled, and has since repeatedly ruled, that even substantial errors in a civil registry may be corrected through a petition filed under Rule 108. [14] It is undoubtedly true that if the subject matter of a petition is not for the correction of clerical errors of a harmless and innocuous nature, but one involving nationality or citizenship, which is indisputably substantial as well as controverted, affirmative relief cannot be granted in a proceeding summary in nature. However, it is also true that a right in law may be enforced and a wrong may be remedied as long as the appropriate remedy is used. This Court adheres to the principle that even substantial errors in a civil registry may be corrected and the true facts established provided the parties aggrieved by the error avail themselves of the appropriate adversary proceeding. xxxx What is meant by appropriate adversary proceeding? Blacks Law Dictionary defines adversary proceeding[] as follows: One having opposing parties; contested, as distinguished from an ex parte application, one of which the party seeking relief has given legal warning to the other party, and afforded the latter an opportunity to contest it. x x x [15] (Emphasis, italics and underscoring supplied)

The enactment in March 2001 of Republic Act No. 9048, otherwise known as AN ACT AUTHORIZING THE CITY OR MUNICIPAL CIVIL REGISTRAR OR THE CONSUL GENERAL TO CORRECT A CLERICAL OR TYPOGRAPHICAL ERROR IN AN ENTRY AND/OR CHANGE OF FIRST NAME OR NICKNAME IN THE CIVIL REGISTER WITHOUT NEED OF JUDICIAL ORDER, has been considered to lend legislative affirmation to the judicial precedence that substantial corrections to the civil status of persons recorded in the civil registry may be effected through the filing of a petition under Rule 108.[16] Thus, this Court in Republic v. Benemerito[17] observed that the obvious effect of Republic Act No. 9048 is to make possible the administrative correction of clerical or typographical errors or change of first name or nickname in entries in the civil register, leaving to Rule 108 the correction of substantial changes in the civil registry in appropriate adversarial proceedings. When all the procedural requirements under Rule 108 are thus followed, the appropriate adversary proceeding necessary to effect substantial corrections to the entries of the civil register is satisfied. [18] The pertinent provisions of Rule 108 of the Rules of Court read: SEC. 3. Parties. When cancellation or correction of an entry in the civil registrar 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 in 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. (Emphasis and underscoring supplied)

There is no dispute that the trial courts Order [19] setting the petition for hearing and directing any person or entity having interest in the petition to oppose it was posted [20] as well as published for the required period; that notices of hearings were duly served on the Solicitor General, the city prosecutor of Butuan and the local civil registrar; and that trial was conducted on January 31, 2002 during which the public prosecutor, acting in behalf of the OSG, actively participated by cross-examining Carlito and Epifania. What surfaces as an issue is whether the failure to implead Marivel and Carlitos parents rendered the trial short of the required adversary proceeding and the trial courts judgment void. A similar issue was earlier raised in Barco v. Court of Appeals.[21] That case stemmed from a petition for correction of entries in the birth certificate of a minor, June Salvacion Maravilla, to reflect the name of her real father (Armando Gustilo) and to correspondingly change her surname. The petition was granted by the trial court. Barco, whose minor daughter was allegedly fathered also by Gustilo, however, sought to annul the trial courts decision, claiming that she should have been made a party to the petition for correction. Failure to implead her deprived the RTC of jurisdiction, she contended. In dismissing Barcos petition, this Court held that the publication of the order of hearing under Section 4 of Rule 108 cured the failure to implead an indispensable party. The essential requisite for allowing substantial corrections of entries in the civil registry is that the true facts be established in an appropriate adversarial proceeding. This is embodied in Section 3, Rule 108 of the Rules of Court, which states: Section 3. Parties. When cancellation or correction of an entry in the civil register is sought, the civil registrar and all persons who have or claim any interest which would be affected thereby shall be made parties to the proceeding. xxxx

Undoubtedly, Barco is among the parties referred to in Section 3 of Rule 108. Her interest was affected by the petition for correction, as any judicial determination that June was the daughter of Armando would affect her wards share in the estate of her father. x x x. Yet, even though Barco was not impleaded in the petition, the Court of Appeals correctly pointed out that the defect was cured by compliance with Section 4, Rule 108, which requires notice by publication x x x. xxxx The purpose precisely of Section 4, Rule 108 is to bind the whole world to the subsequent judgment on the petition. The sweep of the decision would cover even parties who should have been impleaded under Section 3, Rule 108, but were inadvertently left out. x x x xxxx Verily, a petition for correction is an action in rem, an action against a thing and not against a person. The decision on the petition binds not only the parties thereto but the whole world. An in rem proceeding is validated essentially through publication. Publication is notice to the whole world that the proceeding has for its object to bar indefinitely all who might be minded to make an objection of any sort against the right sought to be established. It is the publication of such notice that brings in the whole world as a party in the case and vests the court with jurisdiction to hear and decide it. [22]

Given the above ruling, it becomes unnecessary to rule on whether Marivel or respondents parents should have been impleaded as parties to the proceeding. It may not be amiss to mention, however, that during the hearing on January 31, 2002, the city prosecutor who was acting as representative of the OSG did not raise any objection to the noninclusion of Marivel and Carlitos parents as parties to the proceeding. Parenthetically, it seems highly improbable that Marivel was unaware of the proceedings to correct the entries in her childrens birth certificates, especially since the notices, orders and decision of the trial court were all sent to the residence[23]she shared with Carlito and the children. It is also well to remember that the role of the court in hearing a petition to correct certain entries in the civil registry is to ascertain the truth about the facts recorded therein. [24] With respect to the date of marriage of Carlito and Marivel, their certificate of marriage [25] shows that indeed they were married on January 21, 2000, not on April 27, 1989. Explaining the error, Carlito declared that the date April 27, 1989 was supplied by his helper, adding that he was not married to Marivel at the time his sons were born because his previous marriage was annulled only in 1999. [26] Given the evidence presented by respondents, the CA observed that the minors were illegitimate at birth, hence, the correction would bring about no change at all in the nature of their filiation. With respect to Carlitos mother, it bears noting that she declared at the witness stand that she was not married to Juan Kho who died in 1959.[27] Again, that testimony was not challenged by the city prosecutor.

The documentary evidence supporting the deletion from Carlitos and his siblings birth certificates of the entry Married opposite the date of marriage of their parents, moreover, consisted of a certification issued on November 24, 1973 by St. Joseph (Butuan City) Parish priest Eugene van Vught stating that Juan Kho and Epifania had been living together as common law couple since 1935 but have never contracted marriage legally. [28] A certification from the office of the city registrar, which was appended to respondents Amended Petition, likewise stated that it has no record of marriage between Juan Kho and Epifania.[29] Under the circumstances, the deletion of the word Married opposite the date of marriage of parents is warranted. With respect to the correction in Carlitos birth certificate of his name from Carlito John to Carlito, the same was properly granted under Rule 108 of the Rules of Court. As correctly pointed out by the CA, the cancellation or correction of entries involving changes of name falls under letter o of the following provision of Section 2 of Rule 108: [30]

Section 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 separation; (e) judgments of annulment 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. (Emphasis and underscoring supplied)

Hence, while the jurisdictional requirements of Rule 103 (which governs petitions for change of name) were not complied with, observance of the provisions of Rule 108 suffices to effect the correction sought for. More importantly, Carlitos official transcript of record from the Urious College in Butuan City,[31] certificate of eligibility from the Civil Service Commission, [32] and voter registration record[33] satisfactorily show that he has been known by his first name only. No prejudice is thus likely to arise from the dropping of the second name. The correction of the mothers citizenship from Chinese to Filipino as appearing in Carlitos birth record was also proper. Of note is the fact that during the cross examination by the city prosecutor of Epifania, he did not deem fit to question her citizenship. Such failure to oppose the correction prayed for, which certainly was not respondents fault, does not in any way change the adversarial nature of the proceedings. Also significant to note is that the birth certificates of Carlitos siblings uniformly stated the citizenship of Epifania as Filipino. To disallow the correction in Carlitos birth record of his mothers citizenship would perpetuate an inconsistency in the natal circumstances of the siblings who are unquestionably born of the same mother and father. Outside the ambit of substantial corrections, of course, is the correction of the name of Carlitos wife from Maribel to Marivel. The mistake is clearly clerical or typographical, which is not only visible to the eyes, but is also obvious to the understanding[34] considering that the name reflected in the marriage certificate of Carlito and his wife is Marivel.

Apropos is Yu v. Republic[35] which held that changing the appellants Christian name of Sincio to Sencio amounts merely to the righting of a clerical error. The change of name from Beatriz Labayo/Beatriz Labayu to Emperatriz Labayo was also held to be a mere innocuous alteration, which can be granted through a summary proceeding.[36] The same ruling holds true with respect to the correction in Carlitos marriage certificate of his fathers name from John Kho to Juan Kho. Except in said marriage certificate, the name Juan Kho was uniformly entered in the birth certificates of Carlito and of his siblings.[37] WHEREFORE, the Petition is DENIED. The Decision of the Court of Appeals is AFFIRMED. SO ORDERED.

3. PETITION FOR CHANGE OF CHANGE OF NAME OF JULIAN LIN CARULASAN WANG

SECOND DIVISION

[G.R. No. 159966. March 30, 2005]

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.

4. BRAZA V. CIVIL REGISTRAR OF NEGROS OCCIDENTAL

FIRST DIVISION MA. CRISTINA TORRES BRAZA, PAOLO

G.R. No. 181174

JOSEF T. BRAZA and JANELLE ANN T. BRAZA,

Present:

Petitioners, PUNO, C.J., Chairperson, CARPIO MORALES, LEONARDO-DE CASTRO, - versus -

BERSAMIN, and VILLARAMA, JR., JJ.

THE CITY CIVIL REGISTRAR OF HIMAMAYLAN CITY, NEGROS OCCIDENTAL, minor PATRICK ALVIN TITULAR BRAZA, represented by LEON TITULAR, CECILIA TITULAR and LUCILLE C. TITULAR, Respondents.

Promulgated: December 4, 2009

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x DECISION CARPIO MORALES, J.: Petitioner Ma. Cristina Torres (Ma. Cristina) and Pablo Sicad Braza, Jr. (Pablo), also known as Pablito Sicad Braza, were married[1] on January 4, 1978. The union bore Ma. Cristinas co-petitioners Paolo Josef [2] and Janelle Ann[3] on May 8, 1978 and June 7, 1983, respectively, and Gian Carlo [4] on June 4, 1980.

Pablo died[5] on April 15, 2002 in a vehicular accident in Bandung, West Java, Indonesia. During the wake following the repatriation of his remains to the Philippines, respondent Lucille Titular (Lucille) began introducing her co-respondent minor Patrick Alvin Titular Braza (Patrick) as her and Pablo's son. Ma. Cristina thereupon made inquiries in the course of which she obtained Patrick's birth certificate [6] from the Local Civil Registrar of Himamaylan City, Negros Occidental with the following entries: Name of Child: PATRICK ALVIN CELESTIAL TITULAR Date of Birth: 01 January 1996 Mother: Lucille Celestial Titular Father: Pablito S. Braza Date Received at the Local Civil Registrar: January 13, 1997 Annotation: "Late Registration" Annotation/Remarks: "Acknowledge (sic) by the father Pablito Braza on January 13, 1997" Remarks: Legitimated by virtue of subsequent marriage of parents on April 22, 1998 at Manila. Henceforth, the child shall be known as Patrick Alvin Titular Braza (Emphasis and underscoring supplied) Ma. Cristina likewise obtained a copy [7] of a marriage contract showing that Pablo and Lucille were married on April 22, 1998, drawing her and her co-petitioners to file on December 23, 2005 before the Regional Trial Court of Himamaylan City, Negros Occidental a petition[8] to correct the entries in the birth record of Patrick in the Local Civil Register. Contending that Patrick could not have been legitimated by the supposed marriage between Lucille and Pablo, said marriage being bigamous on account of the valid and subsisting marriage between Ma. Cristina and Pablo, petitioners prayed for (1) the correction of the entries in Patrick's birth record with respect to his legitimation, the name of the father and his acknowledgment, and the use of the last name "Braza"; 2) a directive to Leon, Cecilia and Lucille, all surnamed Titular, as guardians of the minor Patrick, to submit Parick to DNA testing to determine his paternity and filiation; and 3) the declaration of nullity of the legitimation of Patrick as stated in his birth certificate and, for this purpose, the declaration of the marriage of Lucille and Pablo as bigamous. On Patricks Motion to Dismiss for Lack of Jurisdiction, the trial court, by Order [9] of September 6, 2007, dismissed the petition without prejudice, it holding that in a special proceeding for correction of entry, the court, which is not acting as a family court under the Family Code, has no jurisdiction over an action to annul the marriage of Lucille and Pablo, impugn the legitimacy of Patrick, and order Patrick to be subjected to a DNA test, hence, the controversy should be ventilated in an ordinary adversarial action. Petitioners motion for reconsideration having been denied by Order [10] of November 29, 2007, they filed the present petition for review. Petitioners maintain that the court a quo may pass upon the validity of marriage and questions on legitimacy even in an action to correct entries in the civil registrar. Citing Cario v. Cario,[11] Lee v. Court of Appeals [12] and Republic

v. Kho,[13]they contend that even substantial errors, such as those sought to be corrected in the present case, can be the subject of a petition under Rule 108.[14] The petition fails. In a special proceeding for correction of entry under Rule 108 (Cancellation or Correction of Entries in the Original Registry), the trial court has no jurisdiction to nullify marriages and rule on legitimacy and filiation. Rule 108 of the Rules of Court vis a vis Article 412 of the Civil Code [15] charts the procedure by which an entry in the civil registry may be cancelled or corrected. The proceeding contemplated therein may generally be used only to correct clerical, spelling, typographical and other innocuous errors in the civil registry. A clerical error is one which is visible to the eyes or obvious to the understanding; an error made by a clerk or a transcriber; a mistake in copying or writing, or a harmless change such as a correction of name that is clearly misspelled or of a misstatement of the occupation of the parent. Substantial or contentious alterations may be allowed only in adversarial proceedings, in which all interested parties are impleaded and due process is properly observed. [16] The allegations of the petition filed before the trial court clearly show that petitioners seek to nullify the marriage between Pablo and Lucille on the ground that it is bigamous and impugn Patricks filiation in connection with which they ask the court to order Patrick to be subjected to a DNA test. Petitioners insist, however, that the main cause of action is for the correction of Patricks birth records [17] and that the rest of the prayers are merely incidental thereto. Petitioners position does not lie. Their cause of action is actually to seek the declaration of Pablo and Lucilles marriage as void for being bigamous and impugn Patricks legitimacy, which causes of action are governed not by Rule 108 but by A.M. No. 02-11-10-SC which took effect on March 15, 2003, and Art. 171 [18] of the Family Code, respectively, hence, the petition should be filed in a Family Court as expressly provided in said Code. It is well to emphasize that, doctrinally, validity of marriages as well as legitimacy and filiation can be questioned only in a direct action seasonably filed by the proper party, and not through collateral attack such as the petition filed before the court a quo. Petitioners reliance on the cases they cited is misplaced. Cario v. Cario was an action filed by a second wife against the first wife for the return of one-half of the death benefits received by the first after the death of the husband. Since the second wife contracted marriage with the husband while the latters marriage to the first wife was still subsisting, the Court ruled on the validity of the two marriages, it being essential to the determination of who is rightfully entitled to the death benefits. In Lee v. Court of Appeals, the Court held that contrary to the contention that the petitions filed by the therein petitioners before the lower courts were actions to impugn legitimacy, the prayer was not to declare that the petitioners are illegitimate children of Keh Shiok Cheng as stated in their records of birth but to establish that they are not the latters children, hence, there was nothing to impugn as there was no blood relation at all between

the petitioners and Keh Shiok Cheng. That is why the Court ordered the cancellation of the name of Keh Shiok Cheng as the petitioners mother and the substitution thereof with Tiu Chuan who is their biological mother. Thus, the collateral attack was allowed and the petition deemed as adversarial proceeding contemplated under Rule 108.

In Republic v. Kho, it was the petitioners themselves who sought the correction of the entries in their respective birth records to reflect that they were illegitimate and that their citizenship is Filipino, not Chinese, because their parents were never legally married. Again, considering that the changes sought to be made were substantial and not merely innocuous, the Court, finding the proceedings under Rule 108 to be adversarial in nature, upheld the lower courts grant of the petition. It is thus clear that the facts in the above-cited cases are vastly different from those obtaining in the present case. WHEREFORE, the petition is DENIED. SO ORDERED.

5. SILVERIO V. REPUBLIC

Republic

of

the

SUPREME

Philippines COURT

Manila FIRST DIVISION G.R. No. 174689 ROMMEL

October 22, 2007 JACINTO

DANTES

SILVERIO, petitioner,

vs. REPUBLIC OF THE PHILIPPINES, respondent. DECISION CORONA, J.: When God created man, He made him in the likeness of God; He created them male and female. (Genesis 5:1-2) Amihan gazed upon the bamboo reed planted by Bathala and she heard voices coming from inside the bamboo. "Oh North Wind! North Wind! Please let us out!," the voices said. She pecked the reed once, then twice. All of a sudden, the bamboo cracked and slit open. Out came two human beings; one was a male and the other was a female. Amihan named the man "Malakas" (Strong) and the woman "Maganda" (Beautiful). (The Legend of Malakas and Maganda)

When is a man a man and when is a woman a woman? In particular, does the law recognize the changes made by a physician using scalpel, drugs and counseling with regard to a person’s sex? May a person successfully petition for a change of name and sex appearing in the birth certificate to reflect the result of a sex reassignment surgery? On November 26, 2002, petitioner Rommel Jacinto Dantes Silverio filed a petition for the change of his first name and sex in his birth certificate in the Regional Trial Court of Manila, Branch 8. The petition, docketed as SP Case No. 02105207, impleaded the civil registrar of Manila as respondent. Petitioner alleged in his petition that he was born in the City of Manila to the spouses Melecio Petines Silverio and Anita Aquino Dantes on April 4, 1962. His name was registered as "Rommel Jacinto Dantes Silverio" in his certificate of live birth (birth certificate). His sex was registered as "male." He further alleged that he is a male transsexual, that is, "anatomically male but feels, thinks and acts as a female" and that he had always identified himself with girls since childhood. 1 Feeling trapped in a man’s body, he consulted several doctors in the United States. He underwent psychological examination, hormone treatment and breast augmentation. His attempts to transform himself to a "woman" culminated on January 27, 2001 when he underwent sex reassignment surgery2 in Bangkok, Thailand. He was thereafter examined by Dr. Marcelino Reysio-Cruz, Jr., a plastic and reconstruction surgeon in the Philippines, who issued a medical certificate attesting that he (petitioner) had in fact undergone the procedure. From then on, petitioner lived as a female and was in fact engaged to be married. He then sought to have his name in his birth certificate changed from "Rommel Jacinto" to "Mely," and his sex from "male" to "female." An order setting the case for initial hearing was published in the People’s Journal Tonight, a newspaper of general circulation in Metro Manila, for three consecutive weeks. 3 Copies of the order were sent to the Office of the Solicitor General (OSG) and the civil registrar of Manila. On the scheduled initial hearing, jurisdictional requirements were established. No opposition to the petition was made. During trial, petitioner testified for himself. He also presented Dr. Reysio-Cruz, Jr. and his American fiancé, Richard P. Edel, as witnesses. On June 4, 2003, the trial court rendered a decision 4 in favor of petitioner. Its relevant portions read: Petitioner filed the present petition not to evade any law or judgment or any infraction thereof or for any unlawful motive but solely for the purpose of making his birth records compatible with his present sex. The sole issue here is whether or not petitioner is entitled to the relief asked for. The [c]ourt rules in the affirmative. Firstly, the [c]ourt is of the opinion that granting the petition would be more in consonance with the principles of justice and equity. With his sexual [re-assignment], petitioner, who has always felt, thought and acted like a woman, now possesses the physique of a female. Petitioner’s misfortune to be trapped in a man’s body is not his own doing and should not be in any way taken against him.

Likewise, the [c]ourt believes that no harm, injury [or] prejudice will be caused to anybody or the community in granting the petition. On the contrary, granting the petition would bring the much-awaited happiness on the part of the petitioner and her [fiancé] and the realization of their dreams. Finally, no evidence was presented to show any cause or ground to deny the present petition despite due notice and publication thereof. Even the State, through the [OSG] has not seen fit to interpose any [o]pposition. WHEREFORE, judgment is hereby rendered GRANTING the petition and ordering the Civil Registrar of Manila to change the entries appearing in the Certificate of Birth of [p]etitioner, specifically for petitioner’s first name from "Rommel Jacinto" to MELY and petitioner’s gender from "Male" to FEMALE. 5 On August 18, 2003, the Republic of the Philippines (Republic), thru the OSG, filed a petition for certiorari in the Court of Appeals.6 It alleged that there is no law allowing the change of entries in the birth certificate by reason of sex alteration. On February 23, 2006, the Court of Appeals 7 rendered a decision8 in favor of the Republic. It ruled that the trial court’s decision lacked legal basis. There is no law allowing the change of either name or sex in the certificate of birth on the ground of sex reassignment through surgery. Thus, the Court of Appeals granted the Republic’s petition, set aside the decision of the trial court and ordered the dismissal of SP Case No. 02-105207. Petitioner moved for reconsideration but it was denied.9 Hence, this petition. Petitioner essentially claims that the change of his name and sex in his birth certificate is allowed under Articles 407 to 413 of the Civil Code, Rules 103 and 108 of the Rules of Court and RA 9048. 10 The petition lacks merit. A Person’s First Name Cannot Be Changed On the Ground of Sex Reassignment Petitioner invoked his sex reassignment as the ground for his petition for change of name and sex. As found by the trial court: Petitioner filed the present petition not to evade any law or judgment or any infraction thereof or for any unlawful motive but solely for the purpose of making his birth records compatible with his present sex. (emphasis supplied) Petitioner believes that after having acquired the physical features of a female, he became entitled to the civil registry changes sought. We disagree. The State has an interest in the names borne by individuals and entities for purposes of identification. 11 A change of name is a privilege, not a right.12 Petitions for change of name are controlled by statutes. 13 In this connection, Article 376 of the Civil Code provides: ART. 376. No person can change his name or surname without judicial authority. This Civil Code provision was amended by RA 9048 (Clerical Error Law). In particular, Section 1 of RA 9048 provides:

SECTION 1. Authority to Correct Clerical or Typographical Error and Change of First Name or Nickname. – No entry in a civil register shall be changed or corrected without a judicial order, except for clerical or typographical errors and change of 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. RA 9048 now governs the change of first name. 14 It vests the power and authority to entertain petitions for change of first name to the city or municipal civil registrar or consul general concerned. Under the law, therefore, jurisdiction over applications for change of first name is now primarily lodged with the aforementioned administrative officers. The intent and effect of the law is to exclude the change of first name from the coverage of Rules 103 (Change of Name) and 108 (Cancellation or Correction of Entries in the Civil Registry) of the Rules of Court, until and unless an administrative petition for change of name is first filed and subsequently denied. 15 It likewise lays down the corresponding venue,16 form17 and procedure. In sum, the remedy and the proceedings regulating change of first name are primarily administrative in nature, not judicial. RA 9048 likewise provides the grounds for which change of first name may be allowed: SECTION 4. Grounds for Change of First Name or Nickname. – The petition for change of first name or nickname may be allowed in any of the following cases: (1) The petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or extremely difficult to write or pronounce; (2) The new first name or nickname has been habitually and continuously used by the petitioner and he has been publicly known by that first name or nickname in the community; or (3) The change will avoid confusion. Petitioner’s basis in praying for the change of his first name was his sex reassignment. He intended to make his first name compatible with the sex he thought he transformed himself into through surgery. However, a change of name does not alter one’s legal capacity or civil status. 18 RA 9048 does not sanction a change of first name on the ground of sex reassignment. Rather than avoiding confusion, changing petitioner’s first name for his declared purpose may only create grave complications in the civil registry and the public interest. Before a person can legally change his given name, he must present proper or reasonable cause or any compelling reason justifying such change.19 In addition, he must show that he will be prejudiced by the use of his true and official name.20 In this case, he failed to show, or even allege, any prejudice that he might suffer as a result of using his true and official name. In sum, the petition in the trial court in so far as it prayed for the change of petitioner’s first name was not within that court’s primary jurisdiction as the petition should have been filed with the local civil registrar concerned, assuming it could be legally done. It was an improper remedy because the proper remedy was administrative, that is, that provided under RA 9048. It was also filed in the wrong venue as the proper venue was in the Office of the Civil Registrar of Manila where his birth certificate is kept. More importantly, it had no merit since the use of his true and official name does not prejudice him at all. For all these reasons, the Court of Appeals correctly dismissed petitioner’s petition in so far as the change of his first name was concerned.

No Law Allows The Change of Entry In The Birth Certificate As To Sex On the Ground of Sex Reassignment The determination of a person’s sex appearing in his birth certificate is a legal issue and the court must look to the statutes.21 In this connection, Article 412 of the Civil Code provides: ART. 412. No entry in the civil register shall be changed or corrected without a judicial order. Together with Article 376 of the Civil Code, this provision was amended by RA 9048 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, RA 9048 removed from the ambit of Rule 108 of the Rules of Court the correction of such errors.22 Rule 108 now applies only to substantial changes and corrections in entries in the civil register.23 Section 2(c) of RA 9048 defines what a "clerical or typographical error" is: SECTION 2. Definition of Terms. – As used in this Act, the following terms shall mean: xxx

xxx

xxx

(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. (emphasis supplied) Under RA 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. 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:24 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.25 However, no reasonable interpretation of the provision can justify the conclusion that it covers the correction on the ground of sex reassignment.

To correct simply means "to make or set aright; to remove the faults or error from" while to change means "to replace something with something else of the same kind or with something that serves as a substitute." 26 The birth certificate of petitioner contained no error. All entries therein, including those corresponding to his first name and sex, were all correct. No correction is necessary. Article 407 of the Civil Code authorizes the entry in the civil registry of certain acts (such as legitimations, acknowledgments of illegitimate children and naturalization), events (such as births, marriages, naturalization and deaths) and judicial decrees (such as legal separations, annulments of marriage, declarations of nullity of marriages, adoptions, naturalization, loss or recovery of citizenship, civil interdiction, judicial determination of filiation and changes of name). These acts, events and judicial decrees produce legal consequences that touch upon the legal capacity, status and nationality of a person. Their effects are expressly sanctioned by the laws. In contrast, sex reassignment is not among those acts or events mentioned in Article 407. Neither is it recognized nor even mentioned by any law, expressly or impliedly. "Status" refers to the circumstances affecting the legal situation (that is, the sum total of capacities and incapacities) of a person in view of his age, nationality and his family membership. 27 The status of a person in law includes 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. The comprehensive term status… include such matters as the beginning and end of legal personality, capacity to have rights in general, family relations, and its various aspects, such as birth, legitimation, adoption, emancipation, marriage, divorce, and sometimes even succession. 28 (emphasis supplied) A person’s sex is an essential factor in marriage and family relations. It is a part of a person’s legal capacity and civil status. In this connection, Article 413 of the Civil Code provides: ART. 413. All other matters pertaining to the registration of civil status shall be governed by special laws. But there is no such special law in the Philippines governing sex reassignment and its effects. This is fatal to petitioner’s cause. Moreover, Section 5 of Act 3753 (the Civil Register Law) provides: SEC. 5. Registration and certification of births. – The declaration of the physician or midwife in attendance at the birth or, in default thereof, the declaration of either parent of the newborn child, shall be sufficient for the registration of a birth in the civil register. Such declaration shall be exempt from documentary stamp tax and shall be sent to the local civil registrar not later than thirty days after the birth, by the physician or midwife in attendance at the birth or by either parent of the newborn child. In such declaration, the person above mentioned shall certify to the following facts: (a) date and hour of birth; (b) sex and nationality of infant; (c) names, citizenship and religion of parents or, in case the father is not known, of the mother alone; (d) civil status of parents; (e) place where the infant was born; and (f) such other data as may be required in the regulations to be issued. xxx

xxx

xxx (emphasis supplied)

Under the Civil Register Law, a birth certificate is a historical record of the facts as they existed at the time of birth.29Thus, the sex of a person is determined at birth, visually done by the birth attendant (the physician or midwife) by examining the genitals of the infant. Considering that there is no law legally recognizing sex reassignment, the determination of a person’s sex made at the time of his or her birth, if not attended by error, 30 is immutable.31 When words are not defined in a statute they are to be given their common and ordinary meaning in the absence of a contrary legislative intent. The words "sex," "male" and "female" as used in the Civil Register Law and laws concerning the civil registry (and even all other laws) should therefore be understood in their common and ordinary usage, there being no legislative intent to the contrary. In this connection, sex is defined as "the sum of peculiarities of structure and function that distinguish a male from a female" 32 or "the distinction between male and female." 33Female is "the sex that produces ova or bears young" 34 and male is "the sex that has organs to produce spermatozoa for fertilizing ova."35 Thus, the words "male" and "female" in everyday understanding do not include persons who have undergone sex reassignment. Furthermore, "words that are employed in a statute which had at the time a well-known meaning are presumed to have been used in that sense unless the context compels to the contrary." 36 Since the statutory language of the Civil Register Law was enacted in the early 1900s and remains unchanged, it cannot be argued that the term "sex" as used then is something alterable through surgery or something that allows a post-operative male-tofemale transsexual to be included in the category "female." For these reasons, while petitioner may have succeeded in altering his body and appearance through the intervention of modern surgery, no law authorizes the change of entry as to sex in the civil registry for that reason. Thus, there is no legal basis for his petition for the correction or change of the entries in his birth certificate. Neither May Entries in the Birth Certificate As to First Name or Sex Be Changed on the Ground of Equity The trial court opined that its grant of the petition was in consonance with the principles of justice and equity. It believed that allowing the petition would cause no harm, injury or prejudice to anyone. This is wrong. The changes sought by petitioner will have serious and wide-ranging legal and public policy consequences. First, even the trial court itself found that the petition was but petitioner’s first step towards his eventual marriage to his male fiancé. However, marriage, one of the most sacred social institutions, is a special contract of permanent union between a man and a woman.37 One of its essential requisites is the legal capacity of the contracting parties who must be a male and a female.38 To grant the changes sought by petitioner will substantially reconfigure and greatly alter the laws on marriage and family relations. It will allow the union of a man with another man who has undergone sex reassignment (a male-to-female post-operative transsexual). Second, there are various laws which apply particularly to women such as the provisions of the Labor Code on employment of women, 39 certain felonies under the Revised Penal Code 40 and the presumption of survivorship in case of calamities under Rule 131 of the Rules of Court,41 among others. These laws underscore the public policy in relation to women which could be substantially affected if petitioner’s petition were to be granted. It is true that Article 9 of the Civil Code mandates that "[n]o judge or court shall decline to render judgment by reason of the silence, obscurity or insufficiency of the law." However, it is not a license for courts to engage in judicial legislation. The duty of the courts is to apply or interpret the law, not to make or amend it. In our system of government, it is for the legislature, should it choose to do so, to determine what guidelines should govern the recognition of the effects of sex reassignment. The need for legislative guidelines becomes particularly important in this case where the claims asserted are statute-based.

To reiterate, the statutes define who may file petitions for change of first name and for correction or change of entries in the civil registry, where they may be filed, what grounds may be invoked, what proof must be presented and what procedures shall be observed. If the legislature intends to confer on a person who has undergone sex reassignment the privilege to change his name and sex to conform with his reassigned sex, it has to enact legislation laying down the guidelines in turn governing the conferment of that privilege. It might be theoretically possible for this Court to write a protocol on when a person may be recognized as having successfully changed his sex. However, this Court has no authority to fashion a law on that matter, or on anything else. The Court cannot enact a law where no law exists. It can only apply or interpret the written word of its co-equal branch of government, Congress. Petitioner pleads that "[t]he unfortunates are also entitled to a life of happiness, contentment and [the] realization of their dreams." No argument about that. The Court recognizes that there are people whose preferences and orientation do not fit neatly into the commonly recognized parameters of social convention and that, at least for them, life is indeed an ordeal. However, the remedies petitioner seeks involve questions of public policy to be addressed solely by the legislature, not by the courts. WHEREFORE, the petition is hereby DENIED.

6. REPUBLIC V. CAGANDAHAN

SECOND DIVISION

REPUBLIC OF THE PHILIPPINES,

G.R. No. 166676

Petitioner, Present:

QUISUMBING, J., Chairperson, - versus -

CARPIO MORALES, TINGA, VELASCO, JR., and BRION, JJ.

JENNIFER B. CAGANDAHAN, Respondent.

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 non-compliance 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 non-compliance 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 beother 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.

7. REPUBLIC V. UY

THIRD DIVISION G.R. No. 198010, August 12, 2013 REPUBLIC

OF

THE

PHILIPPINES, Petitioner, v. DR.

NORMA

S.

LUGSANAY

UY, Respondent.

DECISION PERALTA, J.:

Assailed in this petition for review on certiorari under Rule 45 of the Rules of Court are the Court of Appeals (CA)1 Decision2 dated February 18, 2011 and Resolution 3 dated July 27, 2011 in CA-G.R. CV No. 00238-MIN. The assailed decision dismissed the appeal filed by petitioner Republic of the Philippines and, consequently, affirmed in toto the June 28, 2004 Order4 of the Regional Trial Court (RTC), Branch 27, Gingoog City in Special Proceedings No. 230-2004 granting the Petition for Correction of Entry of Certificate of Live Birth filed by respondent Dr. Norma S. Lugsanay The

Uy; facts

while

the of

assailed the

resolution case

denied

petitioner's

motion

are

as

for

reconsideration.

follows:cralawlibrary

On March 8, 2004, respondent filed a Petition for Correction of Entry in her Certificate of Live Birth. 5Impleaded as respondent is the Local Civil Registrar of Gingoog City. She alleged that she was born on February 8, 1952 and is the illegitimate daughter of Sy Ton and Sotera Lugsanay 6 Her Certificate of Live Birth7 shows that her full name is “Anita Sy” when in fact she is allegedly known to her family and friends as “Norma S. Lugsanay.” She further claimed that her school records, Professional Regulation Commission (PRC) Board of Medicine Certificate, 8 and passport9 bear the name “Norma S. Lugsanay.” She also alleged that she is an illegitimate child considering that her parents were never married, so she had to follow the surname of her mother. 10 She also contended that she is a Filipino citizen and not Chinese, and all her siblings bear the surname Lugsanay and are all Filipinos. 11cralaw virtualaw library Respondent allegedly filed earlier a petition for correction of entries with the Office of the Local Civil Registrar of Gingoog City to effect the corrections on her name and citizenship which was supposedly granted. 12 However, the National Statistics Office (NSO) records did not bear such changes. Hence, the petition before the RTC. On May 13, 2004, the RTC issued an Order 13 finding the petition to be sufficient in form and substance and setting the case for hearing, with the directive that the said Order be published in a newspaper of general circulation in the City of Gingoog and the Province of Misamis Oriental at least once a week for three (3) consecutive weeks at the expense of respondent, and that the order and petition be furnished the Office of the Solicitor General (OSG) and the City Prosecutor’s Office for their information and guidance. 14 Pursuant to the RTC Order, respondent complied with the publication

requirement.

On June 28, 2004, the RTC issued an Order in favor of respondent, the dispositive portion of which reads: WHEREFORE, premises considered, the instant petition is hereby GRANTED. THE CITY CIVIL REGISTRAR OF GINGOOG CITY, or any person acting in his behalf is directed and ordered to effect the correction or change of the entries in the Certificate of Live Birth of petitioner’s name and citizenship so that the entries would be:cralawlibrary

a) As to petitioner’s name First Name Middle Name Last Name

b) As to petitioner’s nationality/citizenship

: : : :

NORMA SY LUGSANAY

:

FILIPINO

SO ORDERED.15cralaw virtualaw library The RTC concluded that respondent’s petition would neither prejudice the government nor any third party. It also held that the names “Norma Sy Lugsanay” and “Anita Sy” refer to one and the same person, especially since the Local Civil Registrar of Gingoog City has effected the correction. Considering that respondent has continuously used and has been known since childhood as “Norma Sy Lugsanay” and as a Filipino citizen, the RTC granted the petition to confusion.16cralaw

avoid

virtualaw

library

On February 18, 2011, the CA affirmed in toto the RTC Order. The CA held that respondent’s failure to implead other indispensable parties was cured upon the publication of the Order setting the case for hearing in a newspaper of general circulation for three (3) consecutive weeks and by serving a copy of the notice to the Local Civil Registrar, the OSG and the City Prosecutor’s Office.17 As to whether the petition is a collateral attack on respondent’s filiation, the CA ruled in favor of respondent, considering that her parents were not legally married and that her siblings’ birth certificates uniformly state that their surname is Lugsanay and their citizenship is Filipino. 18 Petitioner’s motion for reconsideration

was

denied

in

a

Resolution

dated

July

27,

2011.

Hence, the present petition on the sole ground that the petition is dismissible for failure to implead indispensable parties. Cancellation or correction of entries in the civil registry is governed by Rule 108 of the Rules of Court, 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 proceeding is brought may make orders expediting the proceedings, and may also grant preliminary injunction for the preservation of the rights of the parties pending such proceedings. 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.19cralaw virtualaw library In this case, respondent sought the correction of entries in her birth certificate, particularly those pertaining to her first name, surname and citizenship. She sought the correction allegedly to reflect the name which she has been known for since childhood, including her legal documents such as passport and school and professional records. She likewise relied on the birth certificates of her full blood siblings who bear the surname “Lugsanay” instead of “Sy” and citizenship of “Filipino” instead of “Chinese.” The changes, however, are obviously not mere clerical as they touch on respondent’s filiation and citizenship. In changing her surname from “Sy” (which is the surname of her father) to “Lugsanay” (which is the surname of her mother), she, in effect, changes her status from legitimate to illegitimate; and in changing her citizenship from Chinese to Filipino, the same affects her rights and obligations in this country. Clearly, the

changes

are

substantial.

It has been settled in a number of cases starting with Republic v. Valencia20 that even substantial errors in a civil registry may be corrected and the true facts established provided the parties aggrieved by the error avail themselves of the appropriate adversary proceeding.21 The pronouncement of the Court in that case is illuminating: It is undoubtedly true that if the subject matter of a petition is not for the correction of clerical errors of a harmless and innocuous nature, but one involving nationality or citizenship, which is indisputably substantial as well as controverted, affirmative relief cannot be granted in a proceeding summary in nature. However, it is also true that a right in law may be enforced and a wrong may be remedied as long as the appropriate remedy is used. This Court adheres to the principle that even substantial errors in a civil registry may be corrected and the true facts established provided the parties

aggrieved

by

the

error

avail

themselves

of

the

appropriate

adversary

proceeding.

x

x

x

What is meant by “appropriate adversary proceeding?” Black’s Law Dictionary defines “adversary proceeding” as follows: One having opposing parties; contested, as distinguished from an ex parte application, one of which the party seeking relief has given legal warning to the other party, and afforded the latter an opportunity to contest it. Excludes an adoption proceeding.22cralaw virtualaw library In sustaining the RTC decision, the CA relied on the Court’s conclusion in Republic v. Kho,23Alba v. Court of Appeals,24 and Barco v. Court of Appeals,25 that the failure to implead indispensable parties was cured by the publication of the notice of hearing pursuant to the provisions of Rule 108 of the Rules of Court. In Republic v. Kho,26 petitioner therein appealed the RTC decision granting the petition for correction of entries despite respondents’ failure to implead the minor’s mother as an indispensable party. The Court, however, did not strictly apply the

provisions of Rule 108, because it opined that it was highly improbable that the mother was unaware of the proceedings to correct the entries in her children’s birth certificates especially since the notices, orders and decision of the

trial

court

were

all

sent

to

the

residence

she

shared

with

them. 27cralaw

virtualaw

library

In Alba v. Court of Appeals,28 the Court found nothing wrong with the trial court’s decision granting the petition for correction of entries filed by respondent although the proceedings was not actually known by petitioner. In that case, petitioner’s mother and guardian was impleaded in the petition for correction of entries, and notices were sent to her address appearing in the subject birth certificate. However, the notice was returned unserved, because apparently she no longer lived there. Thus, when she allegedly learned of the granting of the petition, she sought the annulment of judgment which the Court denied. Considering that the petition for correction of entries is a proceeding in rem, the Court held that acquisition of jurisdiction over the person of the petitioner is, therefore, not required and the absence of personal service was cured by the trial court’s compliance with Rule 108 which requires notice by publication. 29cralaw virtualaw

library

In Barco v. Court of Appeals,30 the Court addressed the question of whether the court acquired jurisdiction over petitioner and all other indispensable parties to the petition for correction of entries despite the failure to implead them in said case. While recognizing that petitioner was indeed an indispensable party, the failure to implead her was cured by compliance with Section 4 of Rule 108 which requires notice by publication. In so ruling, the Court pointed out that the petitioner in a petition for correction cannot be presumed to be aware of all the parties whose interests may be affected by the granting of a petition. It emphasized that the petitioner therein exerted earnest effort to comply with the provisions of Rule 108. Thus, the publication of the notice of hearing was considered to have cured the failure to implead

indispensable

parties.

In this case, it was only the Local Civil Registrar of Gingoog City who was impleaded as respondent in the petition below. This, notwithstanding, the RTC granted her petition and allowed the correction sought by respondent, which decision We

was do

not

affirmed in agree

with

toto by the

the

RTC

and

CA. the

CA.

This is not the first time that the Court is confronted with the issue involved in this case. Aside from Kho, Alba and Barco,

the

Court

Delantar,32 and Labayo-Rowe

has

addressed v.

the

same

in Republic

Republic.33cralaw

v.

Coseteng-Magpayo,31Ceruila virtualaw

v.

library

In Republic v. Coseteng-Magpayo,34 claiming that his parents were never legally married, respondent therein filed a petition to change his name from “Julian Edward Emerson Coseteng Magpayo,” the name appearing in his birth certificate to “Julian Edward Emerson Marquez Lim Coseteng.” The notice setting the petition for hearing was published and there being no opposition thereto, the trial court issued an order of general default and eventually granted respondent’s petition deleting the entry on the date and place of marriage of parties; correcting his surname from “Magpayo” to “Coseteng”; deleting the entry “Coseteng” for middle name; and deleting the entry “Fulvio Miranda Magpayo, Jr.” in the space for his father. The Republic of the Philippines, through the OSG, assailed the RTC decision on the grounds that the corrections made on respondent’s birth certificate had the effect of changing the civil status from legitimate to illegitimate and must only be effected through an appropriate adversary proceeding. The Court nullified the RTC decision for respondent’s failure to comply strictly with the procedure laid down in Rule 108 of the Rules of Court. Aside from the wrong remedy availed of by respondent as he filed a petition for Change of Name

under Rule 103 of the Rules of Court, assuming that he filed a petition under Rule 108 which is the appropriate remedy, the petition still failed because of improper venue and failure to implead the Civil Registrar of Makati City and all

affected

parties

as

respondents

in

the

case.

In Ceruila v. Delantar,35 the Ceruilas filed a petition for the cancellation and annulment of the birth certificate of respondent on the ground that the same was made as an instrument of the crime of simulation of birth and, therefore, invalid and spurious, and it falsified all material entries therein. The RTC issued an order setting the case for hearing with a directive that the same be published and that any person who is interested in the petition may interpose his comment or opposition on or before the scheduled hearing. Summons was likewise sent to the Civil Register of Manila. After which, the trial court granted the petition and nullified respondent’s birth certificate. Few months after, respondent filed a petition for the annulment of judgment claiming that she and her guardian were not notified of the petition and the trial court’s decision, hence, the latter was issued without jurisdiction and in violation of her right to due process. The Court annulled the trial court’s decision for failure to comply with the requirements of Rule 108, especially

the

non-impleading

of

respondent

herself

whose

birth

certificate

was

nullified.

In Labayo-Rowe v. Republic,36 petitioner filed a petition for the correction of entries in the birth certificates of her children, specifically to change her name from Beatriz V. Labayu/Beatriz Labayo to Emperatriz Labayo, her civil status from “married” to “single,” and the date and place of marriage from “1953-Bulan” to “No marriage.” The Court modified the trial court’s decision by nullifying the portion thereof which directs the change of petitioner’s civil status as well as the filiation of her child, because it was the OSG only that was made respondent and the proceedings taken was summary in nature which is short of what is required in cases where substantial alterations are sought. Respondent’s birth certificate shows that her full name is Anita Sy, that she is a Chinese citizen and a legitimate child of Sy Ton and Sotera Lugsanay. In filing the petition, however, she seeks the correction of her first name and surname, her status from “legitimate” to “illegitimate” and her citizenship from “Chinese” to “Filipino.” Thus, respondent should have impleaded and notified not only the Local Civil Registrar but also her parents and siblings as the persons who have

interest

and

are

affected

by

the

changes

or

corrections

respondent

wanted

to

make.

The fact that the notice of hearing was published in a newspaper of general circulation and notice thereof was served upon the State will not change the nature of the proceedings taken. 37 A reading of Sections 4 and 5, Rule 108 of the Rules of Court shows that the Rules mandate two sets of notices to different potential oppositors: one given to the persons named in the petition and another given to other persons who are not named in the petition but nonetheless may be considered interested or affected parties. 38Summons must, therefore, be served not for the purpose of vesting the courts with jurisdiction but to comply with the requirements of fair play and due process to afford the person concerned

the

opportunity

to

protect

his

interest

if

he

so

chooses. 39cralaw

virtualaw

library

While there may be cases where the Court held that the failure to implead and notify the affected or interested parties may be cured by the publication of the notice of hearing, earnest efforts were made by petitioners in bringing to court all possible interested parties.40 Such failure was likewise excused where the interested parties themselves initiated the corrections proceedings;41 when there is no actual or presumptive awareness of the existence of the interested parties;42 or

when

a

party

is

inadvertently

left

out. 43cralaw

virtualaw

library

It is clear from the foregoing discussion that when a petition for cancellation or correction of an entry in the civil register involves substantial and controversial alterations, including those on citizenship, legitimacy of paternity or

filiation, or legitimacy of marriage, a strict compliance with the requirements of Rule 108 ofthe Rules of Court is mandated.44 If the entries in the civil register could be corrected or changed through mere summary proceedings and not through appropriate action wherein all parties who may be affected by the entries are notified or represented, the door to fraud or other mischief would be set open, the consequence of which might be detrimental and far reaching.45cralaw

virtualaw

library

WHEREFORE, premises considered, the petition is hereby GRANTED. The Court of Appeals Decision dated February 18, 2011 and Resolution dated July 27, 20011 in CA-G.R. CV No. 00238-MIN, are SET ASIDE. Consequently, the June 28, 2004 Order of the Regional Trial Court, Branch 27, Gingoog City, in Spl. Proc. No. 2302004 granting the Petition for Correction of Entry of Certificate of Live Birth filed by respondent Dr. Norma S. Lugsanay Uy,

is NULLIFIED.

SO ORDERED.

8. FUJIKI V. MARINAY

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 196049 MINORU

June 26, 2013 FUJIKI, PETITIONER,

vs. MARIA PAZ GALELA MARINAY, SHINICHI MAEKARA, LOCAL CIVIL REGISTRAR OF QUEZON CITY, AND THE ADMINISTRATOR AND CIVIL REGISTRAR GENERAL OF THE NATIONAL STATISTICS OFFICE,RESPONDENTS. DECISION CARPIO, J.: The Case This is a direct recourse to this Court from the Regional Trial Court (RTC), Branch 107, Quezon City, through a petition for review on certiorari under Rule 45 of the Rules of Court on a pure question of law. The petition assails the Order1 dated 31 January 2011 of the RTC in Civil Case No. Q-11-68582 and its Resolution dated 2 March 2011 denying petitioner’s Motion for Reconsideration. The RTC dismissed the petition for "Judicial Recognition of Foreign Judgment (or Decree of Absolute Nullity of Marriage)" based on improper venue and the lack of personality of petitioner, Minoru Fujiki, to file the petition. The Facts

Petitioner Minoru Fujiki (Fujiki) is a Japanese national who married respondent Maria Paz Galela Marinay (Marinay) in the Philippines2 on 23 January 2004. The marriage did not sit well with petitioner’s parents. Thus, Fujiki could not bring his wife to Japan where he resides. Eventually, they lost contact with each other. In 2008, Marinay met another Japanese, Shinichi Maekara (Maekara). Without the first marriage being dissolved, Marinay and Maekara were married on 15 May 2008 in Quezon City, Philippines. Maekara brought Marinay to Japan. However, Marinay allegedly suffered physical abuse from Maekara. She left Maekara and started to contact Fujiki. 3 Fujiki and Marinay met in Japan and they were able to reestablish their relationship. In 2010, Fujiki helped Marinay obtain a judgment from a family court in Japan which declared the marriage between Marinay and Maekara void on the ground of bigamy.4 On 14 January 2011, Fujiki filed a petition in the RTC entitled: "Judicial Recognition of Foreign Judgment (or Decree of Absolute Nullity of Marriage)." Fujiki prayed that (1) the Japanese Family Court judgment be recognized; (2) that the bigamous marriage between Marinay and Maekara be declared void ab initiounder Articles 35(4) and 41 of the Family Code of the Philippines; 5 and (3) for the RTC to direct the Local Civil Registrar of Quezon City to annotate the Japanese Family Court judgment on the Certificate of Marriage between Marinay and Maekara and to endorse such annotation to the Office of the Administrator and Civil Registrar General in the National Statistics Office (NSO).6 The Ruling of the Regional Trial Court A few days after the filing of the petition, the RTC immediately issued an Order dismissing the petition and withdrawing the case from its active civil docket. 7 The RTC cited the following provisions of the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages (A.M. No. 02-11-10-SC): Sec. 2. Petition for declaration of absolute nullity of void marriages. – (a) Who may file. – A petition for declaration of absolute nullity of void marriage may be filed solely by the husband or the wife. xxxx Sec. 4. Venue. – The petition shall be filed in the Family Court of the province or city where the petitioner or the respondent has been residing for at least six months prior to the date of filing, or in the case of a non-resident respondent, where he may be found in the Philippines, at the election of the petitioner. x x x The RTC ruled, without further explanation, that the petition was in "gross violation" of the above provisions. The trial court based its dismissal on Section 5(4) of A.M. No. 02-11-10-SC which provides that "[f]ailure to comply with any of the preceding requirements may be a ground for immediate dismissal of the petition." 8 Apparently, the RTC took the view that only "the husband or the wife," in this case either Maekara or Marinay, can file the petition to declare their marriage void, and not Fujiki. Fujiki moved that the Order be reconsidered. He argued that A.M. No. 02-11-10-SC contemplated ordinary civil actions for declaration of nullity and annulment of marriage. Thus, A.M. No. 02-11-10-SC does not apply. A petition for recognition of foreign judgment is a special proceeding, which "seeks to establish a status, a right or a particular fact,"9 and not a civil action which is "for the enforcement or protection of a right, or the prevention or redress of a wrong."10 In other words, the petition in the RTC sought to establish (1) the status and concomitant rights of Fujiki and

Marinay as husband and wife and (2) the fact of the rendition of the Japanese Family Court judgment declaring the marriage between Marinay and Maekara as void on the ground of bigamy. The petitioner contended that the Japanese judgment was consistent with Article 35(4) of the Family Code of the Philippines 11 on bigamy and was therefore entitled to recognition by Philippine courts.12 In any case, it was also Fujiki’s view that A.M. No. 02-11-10-SC applied only to void marriages under Article 36 of the Family Code on the ground of psychological incapacity. 13 Thus, Section 2(a) of A.M. No. 02-11-10-SC provides that "a petition for declaration of absolute nullity of void marriages may be filed solely by the husband or the wife." To apply Section 2(a) in bigamy would be absurd because only the guilty parties would be permitted to sue. In the words of Fujiki, "[i]t is not, of course, difficult to realize that the party interested in having a bigamous marriage declared a nullity would be the husband in the prior, pre-existing marriage." 14 Fujiki had material interest and therefore the personality to nullify a bigamous marriage. Fujiki argued that Rule 108 (Cancellation or Correction of Entries in the Civil Registry) of the Rules of Court is applicable. Rule 108 is the "procedural implementation" of the Civil Register Law (Act No. 3753) 15 in relation to Article 413 of the Civil Code.16 The Civil Register Law imposes a duty on the "successful petitioner for divorce or annulment of marriage to send a copy of the final decree of the court to the local registrar of the municipality where the dissolved or annulled marriage was solemnized."17 Section 2 of Rule 108 provides that entries in the civil registry relating to "marriages," "judgments of annulments of marriage" and "judgments declaring marriages void from the beginning" are subject to cancellation or correction. 18 The petition in the RTC sought (among others) to annotate the judgment of the Japanese Family Court on the certificate of marriage between Marinay and Maekara. Fujiki’s motion for reconsideration in the RTC also asserted that the trial court "gravely erred" when, on its own, it dismissed the petition based on improper venue. Fujiki stated that the RTC may be confusing the concept of venue with the concept of jurisdiction, because it is lack of jurisdiction which allows a court to dismiss a case on its own. Fujiki cited Dacoycoy v. Intermediate Appellate Court 19 which held that the "trial court cannot pre-empt the defendant’s prerogative to object to the improper laying of the venue by motu proprio dismissing the case." 20Moreover, petitioner alleged that the trial court should not have "immediately dismissed" the petition under Section 5 of A.M. No. 02-11-10SC because he substantially complied with the provision. On 2 March 2011, the RTC resolved to deny petitioner’s motion for reconsideration. In its Resolution, the RTC stated that A.M. No. 02-11-10-SC applies because the petitioner, in effect, prays for a decree of absolute nullity of marriage.21 The trial court reiterated its two grounds for dismissal, i.e. lack of personality to sue and improper venue under Sections 2(a) and 4 of A.M. No. 02-11-10-SC. The RTC considered Fujiki as a "third person" 22 in the proceeding because he "is not the husband in the decree of divorce issued by the Japanese Family Court, which he now seeks to be judicially recognized, x x x." 23 On the other hand, the RTC did not explain its ground of impropriety of venue. It only said that "[a]lthough the Court cited Sec. 4 (Venue) x x x as a ground for dismissal of this case[,] it should be taken together with the other ground cited by the Court x x x which is Sec. 2(a) x x x." 24 The RTC further justified its motu proprio dismissal of the petition based on Braza v. The City Civil Registrar of Himamaylan City, Negros Occidental.25 The Court in Braza ruled that "[i]n a special proceeding for correction of entry under Rule 108 (Cancellation or Correction of Entries in the Original Registry), the trial court has no jurisdiction to nullify marriages x x x."26 Braza emphasized that the "validity of marriages as well as legitimacy and filiation can be questioned only in a direct action seasonably filed by the proper party, and not through a collateral attack such as [a] petition [for correction of entry] x x x."27

The RTC considered the petition as a collateral attack on the validity of marriage between Marinay and Maekara. The trial court held that this is a "jurisdictional ground" to dismiss the petition. 28 Moreover, the verification and certification against forum shopping of the petition was not authenticated as required under Section 5 29 of A.M. No. 02-11-10-SC. Hence, this also warranted the "immediate dismissal" of the petition under the same provision. The Manifestation and Motion of the Office of the Solicitor General and the Letters of Marinay and Maekara On 30 May 2011, the Court required respondents to file their comment on the petition for review. 30 The public respondents, the Local Civil Registrar of Quezon City and the Administrator and Civil Registrar General of the NSO, participated through the Office of the Solicitor General. Instead of a comment, the Solicitor General filed a Manifestation and Motion.31 The Solicitor General agreed with the petition. He prayed that the RTC’s "pronouncement that the petitioner failed to comply with x x x A.M. No. 02-11-10-SC x x x be set aside" and that the case be reinstated in the trial court for further proceedings.32 The Solicitor General argued that Fujiki, as the spouse of the first marriage, is an injured party who can sue to declare the bigamous marriage between Marinay and Maekara void. The Solicitor General cited Juliano-Llave v. Republic33 which held that Section 2(a) of A.M. No. 02-11-10-SC does not apply in cases of bigamy. In JulianoLlave, this Court explained: [t]he subsequent spouse may only be expected to take action if he or she had only discovered during the connubial period that the marriage was bigamous, and especially if the conjugal bliss had already vanished. Should parties in a subsequent marriage benefit from the bigamous marriage, it would not be expected that they would file an action to declare the marriage void and thus, in such circumstance, the "injured spouse" who should be given a legal remedy is the one in a subsisting previous marriage. The latter is clearly the aggrieved party as the bigamous marriage not only threatens the financial and the property ownership aspect of the prior marriage but most of all, it causes an emotional burden to the prior spouse. The subsequent marriage will always be a reminder of the infidelity of the spouse and the disregard of the prior marriage which sanctity is protected by the Constitution. 34 The Solicitor General contended that the petition to recognize the Japanese Family Court judgment may be made in a Rule 108 proceeding.35 In Corpuz v. Santo Tomas,36 this Court held that "[t]he 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." 37 While Corpuzconcerned a foreign divorce decree, in the present case the Japanese Family Court judgment also affected the civil status of the parties, especially Marinay, who is a Filipino citizen. The Solicitor General asserted that Rule 108 of the Rules of Court is the procedure to record "[a]cts, events and judicial decrees concerning the civil status of persons" in the civil registry as required by Article 407 of the Civil Code. In other words, "[t]he law requires the entry in the civil registry of judicial decrees that produce legal consequences upon a person’s legal capacity and status x x x." 38 The Japanese Family Court judgment directly bears on the civil status of a Filipino citizen and should therefore be proven as a fact in a Rule 108 proceeding. Moreover, the Solicitor General argued that there is no jurisdictional infirmity in assailing a void marriage under Rule 108, citing De Castro v. De Castro39 and Niñal v. Bayadog40 which declared that "[t]he validity of a void marriage may be collaterally attacked."41

Marinay and Maekara individually sent letters to the Court to comply with the directive for them to comment on the petition.42 Maekara wrote that Marinay concealed from him the fact that she was previously married to Fujiki. 43Maekara also denied that he inflicted any form of violence on Marinay. 44 On the other hand, Marinay wrote that she had no reason to oppose the petition. 45 She would like to maintain her silence for fear that anything she say might cause misunderstanding between her and Fujiki.46 The Issues Petitioner raises the following legal issues: (1) Whether the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages (A.M. No. 02-11-10-SC) is applicable. (2) Whether a husband or wife of a prior marriage can file a petition to recognize a foreign judgment nullifying the subsequent marriage between his or her spouse and a foreign citizen on the ground of bigamy. (3) Whether the Regional Trial Court can recognize the foreign judgment in a proceeding for cancellation or correction of entries in the Civil Registry under Rule 108 of the Rules of Court. The Ruling of the Court We grant the petition. The Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages (A.M. No. 02-1110-SC) does not apply in a petition to recognize a foreign judgment relating to the status of a marriage where one of the parties is a citizen of a foreign country. Moreover, in Juliano-Llave v. Republic,47 this Court held that the rule in A.M. No. 02-11-10-SC that only the husband or wife can file a declaration of nullity or annulment of marriage "does not apply if the reason behind the petition is bigamy." 48 I. For Philippine courts to recognize a foreign judgment relating to the status of a marriage where one of the parties is a citizen of a foreign country, the petitioner only needs to prove the foreign judgment as a fact under the Rules of Court. To be more specific, a copy of the foreign judgment may be admitted in evidence and proven as a fact under Rule 132, Sections 24 and 25, in relation to Rule 39, Section 48(b) of the Rules of Court. 49 Petitioner may prove the Japanese Family Court judgment through (1) an official publication or (2) a certification or copy attested by the officer who has custody of the judgment. If the office which has custody is in a foreign country such as Japan, the certification may be made by the proper diplomatic or consular officer of the Philippine foreign service in Japan and authenticated by the seal of office.50 To hold that A.M. No. 02-11-10-SC applies to a petition for recognition of foreign judgment would mean that the trial court and the parties should follow its provisions, including the form and contents of the petition, 51 the service of summons,52 the investigation of the public prosecutor,53 the setting of pre-trial,54 the trial55 and the judgment of the trial court.56 This is absurd because it will litigate the case anew. It will defeat the purpose of recognizing foreign judgments, which is "to limit repetitive litigation on claims and issues." 57 The interpretation of the RTC is tantamount to relitigating the case on the merits. In Mijares v. Rañada,58 this Court explained that "[i]f every judgment of a foreign

court were reviewable on the merits, the plaintiff would be forced back on his/her original cause of action, rendering immaterial the previously concluded litigation."59 A foreign judgment relating to the status of a marriage affects the civil status, condition and legal capacity of its parties. However, the effect of a foreign judgment is not automatic. To extend the effect of a foreign judgment in the Philippines, Philippine courts must determine if the foreign judgment is consistent with domestic public policy and other mandatory laws.60 Article 15 of the Civil Code provides that "[l]aws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad." This is the rule of lex nationalii in private international law. Thus, the Philippine State may require, for effectivity in the Philippines, recognition by Philippine courts of a foreign judgment affecting its citizen, over whom it exercises personal jurisdiction relating to the status, condition and legal capacity of such citizen. A petition to recognize a foreign judgment declaring a marriage void does not require relitigation under a Philippine court of the case as if it were a new petition for declaration of nullity of marriage. Philippine courts cannot presume to know the foreign laws under which the foreign judgment was rendered. They cannot substitute their judgment on the status, condition and legal capacity of the foreign citizen who is under the jurisdiction of another state. Thus, Philippine courts can only recognize the foreign judgment as a fact according to the rules of evidence. Section 48(b), Rule 39 of the Rules of Court provides that a foreign judgment or final order against a person creates a "presumptive evidence of a right as between the parties and their successors in interest by a subsequent title." Moreover, Section 48 of the Rules of Court states that "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." Thus, Philippine courts exercise limited review on foreign judgments. Courts are not allowed to delve into the merits of a foreign judgment. Once a foreign judgment is admitted and proven in a Philippine court, it can only be repelled on grounds external to its merits, i.e. , "want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact." The rule on limited review embodies the policy of efficiency and the protection of party expectations, 61 as well as respecting the jurisdiction of other states.62 Since 1922 in Adong v. Cheong Seng Gee,63 Philippine courts have recognized foreign divorce decrees between a Filipino and a foreign citizen if they are successfully proven under the rules of evidence. 64 Divorce involves the dissolution of a marriage, but the recognition of a foreign divorce decree does not involve the extended procedure under A.M. No. 02-11-10-SC or the rules of ordinary trial. While the Philippines does not have a divorce law, Philippine courts may, however, recognize a foreign divorce decree under the second paragraph of Article 26 of the Family Code, to capacitate a Filipino citizen to remarry when his or her foreign spouse obtained a divorce decree abroad. 65 There is therefore no reason to disallow Fujiki to simply prove as a fact the Japanese Family Court judgment nullifying the marriage between Marinay and Maekara on the ground of bigamy. While the Philippines has no divorce law, the Japanese Family Court judgment is fully consistent with Philippine public policy, as bigamous marriages are declared void from the beginning under Article 35(4) of the Family Code. Bigamy is a crime under Article 349 of the Revised Penal Code. Thus, Fujiki can prove the existence of the Japanese Family Court judgment in accordance with Rule 132, Sections 24 and 25, in relation to Rule 39, Section 48(b) of the Rules of Court. II. Since the recognition of a foreign judgment only requires proof of fact of the judgment, it may be made in a special proceeding for cancellation or correction of entries in the civil registry under Rule 108 of the Rules of Court. Rule 1,

Section 3 of the Rules of Court provides that "[a] special proceeding is a remedy by which a party seeks to establish a status, a right, or a particular fact." Rule 108 creates a remedy to rectify facts of a person’s life which are recorded by the State pursuant to the Civil Register Law or Act No. 3753. These are facts of public consequence such as birth, death or marriage,66 which the State has an interest in recording. As noted by the Solicitor General, in Corpuz v. Sto. Tomas this Court declared that "[t]he 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." 67 Rule 108, Section 1 of the Rules of Court states: 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. (Emphasis supplied) Fujiki has the personality to file a petition to recognize the Japanese Family Court judgment nullifying the marriage between Marinay and Maekara on the ground of bigamy because the judgment concerns his civil status as married to Marinay. For the same reason he has the personality to file a petition under Rule 108 to cancel the entry of marriage between Marinay and Maekara in the civil registry on the basis of the decree of the Japanese Family Court. There is no doubt that the prior spouse has a personal and material interest in maintaining the integrity of the marriage he contracted and the property relations arising from it. There is also no doubt that he is interested in the cancellation of an entry of a bigamous marriage in the civil registry, which compromises the public record of his marriage. The interest derives from the substantive right of the spouse not only to preserve (or dissolve, in limited instances 68) his most intimate human relation, but also to protect his property interests that arise by operation of law the moment he contracts marriage.69 These property interests in marriage include the right to be supported "in keeping with the financial capacity of the family"70 and preserving the property regime of the marriage. 71 Property rights are already substantive rights protected by the Constitution, 72 but a spouse’s right in a marriage extends further to relational rights recognized under Title III ("Rights and Obligations between Husband and Wife") of the Family Code.73 A.M. No. 02-11-10-SC cannot "diminish, increase, or modify" the substantive right of the spouse to maintain the integrity of his marriage. 74 In any case, Section 2(a) of A.M. No. 02-11-10-SC preserves this substantive right by limiting the personality to sue to the husband or the wife of the union recognized by law. Section 2(a) of A.M. No. 02-11-10-SC does not preclude a spouse of a subsisting marriage to question the validity of a subsequent marriage on the ground of bigamy. On the contrary, when Section 2(a) states that "[a] petition for declaration of absolute nullity of void marriage may be filed solely by the husband or the wife"75—it refers to the husband or the wife of the subsisting marriage. Under Article 35(4) of the Family Code, bigamous marriages are void from the beginning. Thus, the parties in a bigamous marriage are neither the husband nor the wife under the law. The husband or the wife of the prior subsisting marriage is the one who has the personality to file a petition for declaration of absolute nullity of void marriage under Section 2(a) of A.M. No. 02-11-10-SC. Article 35(4) of the Family Code, which declares bigamous marriages void from the beginning, is the civil aspect of Article 349 of the Revised Penal Code,76 which penalizes bigamy. Bigamy is a public crime. Thus, anyone can initiate prosecution for bigamy because any citizen has an interest in the prosecution and prevention of crimes. 77 If anyone can file a criminal action which leads to the declaration of nullity of a bigamous marriage, 78 there is more reason to

confer personality to sue on the husband or the wife of a subsisting marriage. The prior spouse does not only share in the public interest of prosecuting and preventing crimes, he is also personally interested in the purely civil aspect of protecting his marriage. When the right of the spouse to protect his marriage is violated, the spouse is clearly an injured party and is therefore interested in the judgment of the suit. 79 Juliano-Llave ruled that the prior spouse "is clearly the aggrieved party as the bigamous marriage not only threatens the financial and the property ownership aspect of the prior marriage but most of all, it causes an emotional burden to the prior spouse." 80 Being a real party in interest, the prior spouse is entitled to sue in order to declare a bigamous marriage void. For this purpose, he can petition a court to recognize a foreign judgment nullifying the bigamous marriage and judicially declare as a fact that such judgment is effective in the Philippines. Once established, there should be no more impediment to cancel the entry of the bigamous marriage in the civil registry. III. In Braza v. The City Civil Registrar of Himamaylan City, Negros Occidental, this Court held that a "trial court has no jurisdiction to nullify marriages" in a special proceeding for cancellation or correction of entry under Rule 108 of the Rules of Court.81 Thus, the "validity of marriage[] x x x can be questioned only in a direct action" to nullify the marriage.82 The RTC relied on Braza in dismissing the petition for recognition of foreign judgment as a collateral attack on the marriage between Marinay and Maekara. Braza is not applicable because Braza does not involve a recognition of a foreign judgment nullifying a bigamous marriage where one of the parties is a citizen of the foreign country. 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, 83 support pendente lite of the spouses and children, 84 the liquidation, partition and distribution of the properties of the spouses, 85 and the investigation of the public prosecutor to determine collusion. 86 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." 87 In other words, a Filipino citizen cannot dissolve his marriage by the mere expedient of changing his entry of marriage in the civil registry. However, this does not apply in a petition for correction or cancellation of a civil registry entry based on the recognition of a foreign judgment annulling a marriage where one of the parties is a citizen of the foreign country. There is neither circumvention of the substantive and procedural safeguards of marriage under Philippine law, nor of the jurisdiction of Family Courts under R.A. No. 8369. A recognition of a foreign judgment is not an action to nullify a marriage. It is an action for Philippine courts to recognize the effectivity of a foreign judgment, which presupposes a case which was already tried and decided under foreign law. The procedure in A.M. No. 02-11-10-SC does not apply in a petition to recognize a foreign judgment annulling a bigamous marriage where one of the parties is a citizen of the foreign country. Neither can R.A. No. 8369 define the jurisdiction of the foreign court. Article 26 of the Family Code confers jurisdiction on Philippine courts to extend the effect of a foreign divorce decree to a Filipino spouse without undergoing trial to determine the validity of the dissolution of the marriage. The second

paragraph of Article 26 of the Family Code provides that "[w]here 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 have capacity to remarry under Philippine law." In Republic v. Orbecido,88 this Court recognized the legislative intent of the second paragraph of Article 26 which is "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"89 under the laws of his or her country. The second paragraph of Article 26 of the Family Code only authorizes Philippine courts to adopt the effects of a foreign divorce decree precisely because the Philippines does not allow divorce. Philippine courts cannot try the case on the merits because it is tantamount to trying a case for divorce. The second paragraph of Article 26 is only a corrective measure to address the anomaly that results from a marriage between a Filipino, whose laws do not allow divorce, and a foreign citizen, whose laws allow divorce. The anomaly consists in the Filipino spouse being tied to the marriage while the foreign spouse is free to marry under the laws of his or her country. The correction is made by extending in the Philippines the effect of the foreign divorce decree, which is already effective in the country where it was rendered. The second paragraph of Article 26 of the Family Code is based on this Court’s decision in Van Dorn v. Romillo90 which declared that the Filipino spouse "should not be discriminated against in her own country if the ends of justice are to be served." 91 The principle in Article 26 of the Family Code applies in a marriage between a Filipino and a foreign citizen who obtains a foreign judgment nullifying the marriage on the ground of bigamy. The Filipino spouse may file a petition abroad to declare the marriage void on the ground of bigamy. The principle in the second paragraph of Article 26 of the Family Code applies because the foreign spouse, after the foreign judgment nullifying the marriage, is capacitated to remarry under the laws of his or her country. If the foreign judgment is not recognized in the Philippines, the Filipino spouse will be discriminated—the foreign spouse can remarry while the Filipino spouse cannot remarry. Under the second paragraph of Article 26 of the Family Code, Philippine courts are empowered to correct a situation where the Filipino spouse is still tied to the marriage while the foreign spouse is free to marry. Moreover, notwithstanding Article 26 of the Family Code, Philippine courts already have jurisdiction to extend the effect of a foreign judgment in the Philippines to the extent that the foreign judgment does not contravene domestic public policy. A critical difference between the case of a foreign divorce decree and a foreign judgment nullifying a bigamous marriage is that bigamy, as a ground for the nullity of marriage, is fully consistent with Philippine public policy as expressed in Article 35(4) of the Family Code and Article 349 of the Revised Penal Code. The Filipino spouse has the option to undergo full trial by filing a petition for declaration of nullity of marriage under A.M. No. 02-11-10-SC, but this is not the only remedy available to him or her. Philippine courts have jurisdiction to recognize a foreign judgment nullifying a bigamous marriage, without prejudice to a criminal prosecution for bigamy. In the recognition of foreign judgments, Philippine courts are incompetent to substitute their judgment on how a case was decided under foreign law. They cannot decide on the "family rights and duties, or on the status, condition and legal capacity" of the foreign citizen who is a party to the foreign judgment. Thus, Philippine courts are limited to the question of whether to extend the effect of a foreign judgment in the Philippines. In a foreign judgment relating to the status of a marriage involving a citizen of a foreign country, Philippine courts only decide whether to extend its effect to the Filipino party, under the rule of lex nationalii expressed in Article 15 of the Civil Code. For this purpose, Philippine courts will only determine (1) whether the foreign judgment is inconsistent with an overriding public policy in the Philippines; and (2) whether any alleging party is able to prove an extrinsic ground to repel the foreign judgment, i.e. want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law

or fact. If there is neither inconsistency with public policy nor adequate proof to repel the judgment, Philippine courts should, by default, recognize the foreign judgment as part of the comity of nations. Section 48(b), Rule 39 of the Rules of Court states that the foreign judgment is already "presumptive evidence of a right between the parties." Upon recognition of the foreign judgment, this right becomes conclusive and the judgment serves as the basis for the correction or cancellation of entry in the civil registry. The recognition of the foreign judgment nullifying a bigamous marriage is a subsequent event that establishes a new status, right and fact 92 that needs to be reflected in the civil registry. Otherwise, there will be an inconsistency between the recognition of the effectivity of the foreign judgment and the public records in the Philippines.1âwphi1 However, the recognition of a foreign judgment nullifying a bigamous marriage is without prejudice to prosecution for bigamy under Article 349 of the Revised Penal Code. 93 The recognition of a foreign judgment nullifying a bigamous marriage is not a ground for extinction of criminal liability under Articles 89 and 94 of the Revised Penal Code. Moreover, under Article 91 of the Revised Penal Code, "[t]he term of prescription [of the crime of bigamy] shall not run when the offender is absent from the Philippine archipelago." Since A.M. No. 02-11-10-SC is inapplicable, the Court no longer sees the need to address the questions on venue and the contents and form of the petition under Sections 4 and 5, respectively, of A.M. No. 02-11-10-SC. WHEREFORE, we GRANT the petition. The Order dated 31 January 2011 and the Resolution dated 2 March 2011 of the Regional Trial Court, Branch 107, Quezon City, in Civil Case No. Q-11-68582 are REVERSED and SET ASIDE. The Regional Trial Court is ORDERED to REINSTATE the petition for further proceedings in accordance with this Decision. SO ORDERED.

9. PEOPLE V. OLAYBAR

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION

REPUBLIC

G.R. No. 189538

February 10, 2014

OF

THE

vs. MERLINDA L. OLAYBAR, Respondent. DECISION

PHILIPPINES, Petitioner,

PERALTA, J.: Assailed in this petition for review on certiorari under Rule 45 of the Rules of Court are the Regional Trial Court 1(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 latter’s 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 petitioner’s 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 petitioner’s counsel, and all concerned government agencies. SO ORDERED.12 Contrary to petitioner’s 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 respondent’s 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 latter’s 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. 16Thus, 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. Valencia 19 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 party’s 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 respondent’s signature appearing in some of her government issued identification cards.23 The court thus made a categorical conclusion that respondent’s 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.1âwphi1 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.

10.

ONDE V. CIVIL REGISTRAR OF LAS PIÑAS

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 197174

September 10, 2014

FRANCLER

P.

ONDE, Petitioner,

vs. THE OFFICE OF THE LOCAL CIVIL REGISTRATION OF LAS PIÑAS CITY, Respondent. RESOLUTION VILLARAMA, JR., J.: Before us is a petition for review on certiorari of the Orders 1 dated October 7, 2010 and March 1, 2011 of the Regional Trial Court (RTC), Branch 201, Las Piñas City, in Special Proceedings Case No. 10-0043. The RTC dismissed the case filed by petitioner Francler P. Onde for correction of entries in his certificate of live birth. The antecedent facts follow: Petitioner filed a petition 2 for correction of entries in his certificate of live birth before the R TC and named respondent Office of the Local Civil Registrar of Las Pifias City as sole respondent. Petitioner alleged that he is the illegitimate child of his parents Guillermo A. Onde and Matilde DC Pakingan, but his birth certificate stated that his parents were married. His birth certificate also stated that his mother's first name is Tely and that his first name is Franc Ler. He prayed that the following entries on his birth certificate be corrected as follows:

Entry

From

To

1) Date and place of marriage of his parents

December 23, 1983 - Bicol

Not Married

2) First name of his mother

Tely

Matilde

3) His first name

Franc Ler

Francler

In its Order dated October 7, 2010, the RTC dismissed the petition for correction of entries on the ground thatit is insufficient in form and substance. It ruled that the proceedings must be adversarial since the first correction is substantial in nature and would affect petitioner’s status as a legitimate child. It was further held that the correction in the first name of petitioner and his mother can be done by the city civil registrar under Republic Act (R.A.) No. 9048, entitled An Act Authorizing the City or Municipal Civil Registrar or the ConsulGeneral to Correct a Clerical or Typographical Error in an Entry and/or Change of First Name or Nickname in the Civil Registrar Without Need of a Judicial Order, Amending for this Purpose Articles 376 and 412 of the Civil Code of the Philippines. In its Order dated March 1, 2011,the RTC denied petitioner’s motion for reconsideration, as it found no proof that petitioner’s parents were not married on December 23, 1983. Essentially, the petition raises fourissues: (1) whether the RTC erred in ruling that the correction on the first name of petitioner and his mother can be done by the city civil registrar under R.A. No. 9048; (2) whether the RTC erred in ruling that correcting the entry on petitioner’s birth certificate that his parents were married on December 23, 1983 in Bicol to "not married" is substantial in nature requiring adversarial proceedings; (3) whether the RTC erred in dismissing the petition for correction of entries; and (4) whether the RTC erred in ruling that there is no proof that petitioner’s parents were not married on December 23, 1983. Petitioner argues that Rule 108 ofthe Rules of Court allows a substantial correction of entries in the civil registry, stating that in Eleosida v. Local Civil Registrar of Quezon City, 3 the case cited by the RTC, we have actually ruled that substantial changes in the civil registry are now allowed under Rule 108 of the Rules of Court. He likewise adds that proof that his parents were not married will be presented during the trial, not during the filing of the petition for correction of entries. In its comment, the Office of the Solicitor General (OSG) contends that the RTC correctly dismissed the petition for correction of entries. It points out that the first names of petitioner and his mother can be corrected thru administrative proceedings under R.A. No. 9048. Such correction of the entry on petitioner’s birth certificate that his parents were married on December 23, 1983 in Bicol to "not married" is a substantial correction affecting his legitimacy. Hence, it must be dealt with in adversarial proceedings where all interested parties are impleaded. We deny the petition. On the first issue, we agree with the RTC that the first name of petitioner and his mother as appearing in his birth certificate can be corrected by the city civil registrar under R.A. No. 9048. We note that petitioner no longer contested the RTC’s ruling on this point.4 Indeed, under Section 15 of R.A. No. 9048, clerical or typographical errors on entries in a civil register can be corrected and changes of first name can be done by the concerned city civil registrar without need of a judicial order. Aforesaid Section 1, as amended by R.A. No. 10172, now reads: SECTION 1. Authority to Correct Clerical or Typographical Error and Change of First Name or Nickname. – No entry in a civil register shall be changed or correctedwithout a judicial order, except for clerical or typographical errors and change of first name or nickname, the day and month in the dateof birth or sex of a person where it is patently clear that there was a clerical

or typographical error or mistake in the entry, which can be corrected or changed by the concerned city or municipalcivil registraror consul general in accordance with the provisions of this Act and its implementing rules and regulations. (Emphasis supplied.) In Silverio v. Republic,6 we held that under R.A. No. 9048, jurisdiction over applications for change of first name is now primarily lodged with administrative officers. The intent and effect of said law is to exclude the change of first name from the coverage of Rules 103 (Change of Name) and 108 (Cancellation or Correction of Entries in the Civil Registry) of the Rules of Court, until and unless an administrative petition for change of name is first filed and subsequently denied. The remedy and the proceedings regulating change of first name are primarily administrative in nature, not judicial. In Republic v. Cagandahan,7 we said that under R.A.No. 9048, the correction of clerical or typographical errors can now be made through administrative proceedings and without the need for a judicial order. The law removed from the ambit of Rule 108 of the Rules ofCourt the correction of clerical or typographical errors. Thus petitioner can avail of this administrative remedy for the correction of his and his mother’s first name. On the second issue, we also agree with the RTC in ruling that correcting the entry on petitioner’s birth certificate that his parents were married on December 23, 1983 in Bicol to "not married" is a substantial correction requiring adversarial proceedings. Said correction is substantial as it will affect his legitimacy and convert him from a legitimate child to an illegitimate one. In Republic v. Uy, 8 we held that corrections of entries in the civil register including those on citizenship, legitimacyof paternity or filiation, or legitimacy of marriage,involve substantial alterations. Substantial errors in a civil registry may be corrected and the true facts established provided the parties aggrieved by the error avail themselves of the appropriate adversaryproceedings. 9 On the third issue, we likewise affirm the RTC in dismissing the petition for correction of entries. As mentioned, petitioner no longer contested the RTC ruling that the correction he sought on his and his mother’s first name can be done by the city civil registrar. Under the circumstances, we are constrained to deny his prayer that the petition for correction of entries before the RTC bereinstated since the same petition includes the correction he sought on his and his mother’s first name. We clarify, however, that the RTC’s dismissal is without prejudice. As we said, petitioner can avail ofthe administrative remedy for the correction of his and his mother’s first name.1âwphi1 He can also file a new petition before the RTC to correct the alleged erroneous entry on his birth certificate that his parents were married on December 23, 1983 in Bicol. This substantial correction is allowed under Rule 108 of the Rules of Court. As we reiterated in Eleosida v. Local Civil Registrar of Quezon City:10 x x x This is our ruling in Republic vs. Valenciawhere we held that even substantial errors in a civil registry may be corrected and the true facts established under Rule 108 [of the Rules of Court]provided the parties aggrieved by the error avail themselves of the appropriate adversary proceeding. x x x xxxx It is true in the case at bar that the changes sought to be made by petitioner are not merely clerical or harmless errors but substantial ones as they would affect the status of the marriage between petitioner and Carlos Borbon, as well as the legitimacy of their son, Charles Christian. Changes of such nature, however, are now allowed under Rule 108in accordance with our ruling in Republic vs. Valenciaprovided that the appropriate procedural requirements are complied with. x x x (Emphasis supplied.)

We also stress that a petition seeking a substantial correction of an entry in a civil register must implead as parties to the proceedings not only the local civil registrar, as petitioner did in the dismissed petition for correction of entries, but also all persons who have or claim any interest which would be affected by the correction. This is required by Section 3, Rule 108 of the Rules of Court: 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. (Emphasis supplied.) In Eleosida,11 we cited Section 3, and Sections 4 and 5 of Rule 108 of the Rules of Court, as the procedural requirements laid down by the Court to make the proceedings under Rule 108 adversary. In Republic v. Uy, 12 we have similarly ruled that when a petition for cancellation or correction of an entry in the civil register involves substantial and controversial alterations, including those on citizenship, legitimacy of paternity or filiation, or legitimacy of marriage, a strict compliance with the requirements of the Rules of Court is mandated. Thus, in his new petition, petitioner should at least implead his father and mother as parties since the substantial correction he is seeking will also affect them. In view of the foregoing discussion, it is no longer necessary to dwell on the last issue as petitioner will have his opportunity to prove his claim that his parents were not married on December 23, 1983 when he files the new petition for the purpose. WHEREFORE, we DENY the petition and AFFIRM the Orders dated October 7, 2010 and March 1, 2011 of the Regional Trial Court, Branch 201, Las Pifias City, in Special Proceedings Case No. 10-0043. The dismissal ordered by the Regional Trial Court is, however, declared to be without prejudice. No pronouncement as to costs. SO ORDERED.

11.

ALMOJUELA V. REPUBLIC

FIRST DIVISION August 24. 2016

G.R. No. 211724 IN THE MATTER OF THE PETITION FOR CORRECTION OF ENTRY (CHANGE OF FAMILY NAME IN THE BIRTH CERTIFICATE OF FELIPE C. ALMOJUELA AS APPEARING IN THE RECORDS OF THE NATIONAL STATISTICS OFFICE),

FELIPE

C.

ALMOJUELA, Petitioner

vs. REPUBLIC OF THE PHILIPPINES, Respondent RESOLUTION PERLAS-BERNABE, J.: Assailed in this petition for review on certiorari1 is the Decision2 dated February 27, 2014 rendered by the Court of Appeals (CA) in CA-G.R. CV. No. 98082, which reversed and set aside the Decision 3 dated October 6, 2011 and the Order4 dated November 14, 2011 of the Regional Trial Court of Virac, Catanduanes, Branch 43 (RTC) in Spec. Proc. No. 1345 granting the Petition for Correction of Entry in the Certificate of Live Birth filed by petitioner Felipe C. Almojuela (petitioner). The Facts For almost sixty (60) years, petitioner has been using the surname "Almojuela." However, when he requested for a copy of his birth certificate from the National Statistics Office (NSO), he was surprised to discover that he was registered as "Felipe Condeno," instead of "Felipe Almojuela." Thus, he filed a Petition for Correction of Entry 5 in his NSO birth certificate before the RTC, 6 docketed as Spec. Proc. No. 1345.7 Petitioner alleged that he was born on February 25, 1950 in Pandan, Catanduanes and is the acknowledged natural child of Jorge V. Almojuela (Jorge), fonner governor of the said province, and Francisca B. Condeno (Francisca), both deceased. He averred that while his parents did not marry each other, he has been known to his family and friends as "Felipe Almojuela" and has been using the said surname in all of his official and legal documents, including his school records from elementary to college, certificate of Government Service Insurance System (GSIS) membership, government service records, appointment as Provincial General Services Officer, report of rating in the First Grade Entrance Examination of the Civil Service Commission, Philippine Passport, Marriage Contract, and Certificate of Compensation Payment/Tax Withheld. In support of his petition, he also presented a copy of his birth certificate issued by the Local Civil Registrar of the Municipality of Pandan, Catanduanes showing that "Felipe Almojuela" appears as his registered full name.8 In an Order9 dated January 10, 2011, the RTC initially dismissed the petition on the ground that petitioner's recourse to Rule 108 of the Rules of Court was improper, as the petition did not involve mere correction of clerical errors but a matter of filiation which should, thus, be filed in accordance with Rule 103 of the same Rules. Moreover, it found that a similar petition docketed as Spec. Proc. No. 1229 had already been ruled upon and dismissed by the court.

10

Petitioner moved for reconsideration, maintaining that the issue of filiation is immaterial since he was only seeking a correction of entry by including the surname "Almojuela" to "Felipe Condeno," his first and middle names appearing on his birth certificate with the NSO. He likewise insisted that the name "Jorge V. Almojuela" was clearly indicated thereon as the name of his father. Finding merit in petitioner's arguments, the RTC, in an Order 11 dated February 9, 2011, reconsidered its earlier disposition and allowed petitioner to present his evidence. 12

During the proceedings, it was discovered that petitioner's name as registered in the Book of Births in the custody of the Municipal Civil Registar of Pandan, Catanduanes is "Felipe Condeno" and not "Felipe C. Almojuela," contrary to petitioner's allegation.13 The RTC Ruling In a Decision14 dated October 6, 2011, the R TC granted the petition and accordingly, directed the Municipal Civil Registrar .of Pandan, Catanduanes to cause the correction of entry of the facts of petitioner's birth by changing his surname from "Condeno" to "Almojuela" and to furnish the Civil Registrar General with a copy of the corrected birth certificate.15 In so ruling, the R TC found that the change in petitioner's surname would cause no prejudice to the Almojuela family nor would they be the object of future mischief. Instead, petitioner has shown that he was accepted and acknowledged by his half-siblings. Moreover, allowing petitioner to retain the surname that he has been using for over sixty (60) years, i.e., "Almojuela," would avoid confusion in his personal undertakings, as well as in the community. 16 However, considering that the Book of Births of the Municipal Civil Registrar of Pandan, Catanduanes reflects the name "Felipe Condeno" as petitioner's registered name, the R TC ordered that the same be first corrected before the correction of entry in the records of the NSO could be had. 17 The Republic of the Philippines, through the Office of the Solicitor General (OSG), moved for reconsideration, 18citing lack of jurisdiction due to defective publication and contending that the caption or title of a petition for change of name should state: (a) the alias or other name of petitioner; (b) the name he seeks to adopt; and (c) the cause for the change of name, all of which were lacking in the petition filed before the RTC. 19 In an Order20 dated November 14, 2011, the RTC denied the OSG's motion and reiterated its stance that based on the allegations thereon, the petition was only for the correction of entry in the records of the NSO. As petitioner had established compliance with the jurisdictional requirements therefor, the RTC had thus acquired jurisdiction. 21 Dissatisfied, the OSG appealed22to the CA. The CA Ruling In a Decision23 dated February 27, 2014, the CA reversed and set aside the assailed RTC Decision and Order, and nullified the RTC's order for the correction of entry in petitioner's birth certificate. 24 It held that although petitioner correctly invoked Rule 108 of the Rules of Court in filing his petition, 25 he, however, failed to strictly comply with the requirements thereunder when he omitted to implead the Local Civil Registrar and his half-siblings, who stand to be affected by the corrections prayed for, as parties. 26 Sections 427 and 5 28 of Rule 108 of the Rules of Court require that notice be sent to persons named in the petition, as well as to those not named thereon but nonetheless may be considered interested or affected parties. In petitioner's case, his failure to imp lead and notify the Local Civil Registrar and his half-siblings as mandated by the rules precluded the RTC from acquiring jurisdiction over the case.

29

Moreover, the CA also found that the correction of entry sought by petitioner was not merely clerical in nature, but necessarily involved a determination of his filiation. As petitioner failed to show that his putative father, Jorge, recognized him as his child through any of the means allowed under Article 176 of the Family Code, as amended by Republic Act No. 9255,30 petitioner, therefore, cannot use "Almojuela" as his sumame. 31 Aggrieved, petitioner elevated the matter before the Court through the instant petition.1âwphi1

The Issue Before the Court The sole issue to be resolved by the Court is whether or not the CA erred in nullifying the correction of entry on petitioner's birth certificate on the ground of lack of jurisdiction. The Court's Ruling The petition is bereft of merit. Rule 108 of the Rules of Court provides the procedure for the correction of substantial changes in the civil registry through an appropriate adversary proceeding.

32

An adversary proceeding is defined as one "having opposing parties;

contested, as distinguished from an ex parte application, one of which the party seeking relief has given legal warning to the other party, and afforded the latter an opportunity to contest it." 33 Sections 3, 4, and 5, Rule 108 of the Rules of Court state: 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. (Emphases supplied) A reading of Sections 4 and 5 shows that the Rule mandates two (2) sets of notices to potential oppositors: one given to persons named in the petition, and another given to other persons who are not named in the petition but nonetheless may be considered interested or affected parties.

34

Consequently, the petition for a substantial correction

of an entry in the civil registry should implead as respondents the civil registrar, as well as all other persons who have or claim to have any interest that would be affected thereby.

35

In Republic v. Coseteng-Magpayo, 36 the Court emphasized that in a petition for a substantial correction or change of entry in the civil registry under Rule 108, it is mandatory that the civil registrar, as well as all other persons who have or claim to have any interest that would be affected thereby be made respondents for the reason that they are indispensable parties.37 Thus, the Court nullified the order to effect the necessary changes for respondent's failure to strictly comply with the foregoing procedure laid down in Rule 108 of the Rules of Court. Citing Labayo-Rowe v. Republic, 38 the Court held therein: Aside from the Office of the Solicitor General, all other indispensable parties should have been made respondents. They include not only the declared father of the child but the child as well, together with the paternal grandparents, if any, as their hereditary rights would be adversely affected thereby. All other persons who may be affected by the change should be notified or represented. The truth is best ascertained under an adversary system of justice.

The right of the child Victoria to inherit from her parents would be substantially impaired if her status would be changed from "legitimate" to "illegitimate." Moreover, she would be exposed to humiliation and embarrassment resulting from the stigma of an illegitimate filiation that she will bear thereafter. The fact that the notice of hearing of the petition was published in a newspaper of general circulation and notice thereof was served upon the State will not change the nature of the proceedings taken. Rule 108, like all the other provisions of the Rules of Court, was promulgated by the Supreme Court pursuant to its rule-making authority under Section 13, Article VIII of the 1973 Constitution, which directs that such rules shall not diminish, increase or modify substantive rights. If Rule 108 were to be extended beyond innocuous or harmless changes or corrections of errors which are visible to the eye or obvious to the understanding, so as to comprehend substantial and controversial alterations concerning citizenship, legitimacy of paternity or filiation, or legitimacy of marriage, without observing the proper proceedings as earlier mentioned, said rule would thereby become an unconstitutional exercise which would tend to increase or modify substantive rights. This situation is not contemplated under Article 412 of the Civil Code.

39

(Emphases, italics and underscoring supplied)

Similarly, in Republic v. Uy,40 the Court nullified the trial court's order to correct respondent's entry for the latter's failure to implead and notify not only the Local Civil Registrar, but also her parents and siblings as the persons who have interest and are affected by the changes or corrections sought. 41 In this case, the CA correctly found that petitioner failed to implead both the Local Civil Registrar and his halfsiblings. 42 Although he claims that his half-siblings have acknowledged and accepted him, the procedural rules nonetheless mandate compliance with the requirements in the interest of fair play and due process and to afford the person concerned the opportunity to protect his interest if he so chooses.

43

Moreover, although it is true that in certain instances, the Court has allowed the subsequent publication of a notice of hearing to cure the petition's lack/failure to implead and notify the affected or interested parties, such as when: (a) earnest efforts were made by petitioners in bringing to court all possible interested parties; (b) the parties themselves initiated the corrections proceedings; (c) there is no actual or presumptive awareness of the existence of the interested parties; or, (d) when a party is inadvertently left out, 44 these exceptions are, unfortunately, unavailing in this case. In sum, the failure to strictly comply with the above-discussed requirements of Rule 108 of the Rules of Court for correction of an entry in the civil registrar involving substantial and controversial alterations renders the entire proceedings therein null and void. In Republic v. CA, 45 the Court held that the proceedings of the trial court were null and void for lack of jurisdiction as the petitioners therein failed to implead the civil registrar, an indispensable party, in the petition for correction of entry, viz.: >> The local civil registrar is thus required to be made a party to the proceeding. He is an indispensable party, without whom no final determination of the case can be had. As he was not imp leaded in this case much less given notice of the proceeding, the decision of the trial court, insofar as it granted the prayer for the correction of entry, is void. The absence of an indispensable party in a case renders ineffectual all proceedings subsequent to the filing of the complaint including the judgment. xxxx The necessary consequence of the failure to implead the civil registrar as an indispensable party and to give notice by publication of the petition for correction of entry was to render the proceeding of the trial court, so

far as the corrction of entry was concerned, null and void for lack of jurisdiction both as to party and as to the subject matter.46 (Emphases and underscoring supplied) Cobnsequently, the petition for correction of entry by petitioner must perforce be dismissed. WHEREFORE, the petition is DENIED. The Decision dated February 27, 2014 of the Court of Appeals in CA-G.R. C.V. No. 98082 is hereby AFFIRMED. Consequently, the Decision dated October 6, 2011 of the Regional Trial Court of Virac, Catanduanes, Branch 43 in Spec. Proc. No. 1345 granting the Petition for Correction of Entry in the Certificate of Live Birth in NULLIFIED. SO ORDERED.

12.

GAN V. REPUBLIC

THIRD DIVISION G.R. No. 207147, September 14, 2016 EMELITA BASILIO GAN, Petitioner, v. REPUBLIC OF THE PHILIPPINES, Respondent. RESOLUTION REYES, J.: This is a petition for review on certiorari1 under Rule 45 of the Rules of Court seeking to annul and set aside the Decision2 dated April 26, 2013 issued by the Court of Appeals (CA) in CA-G.R. CV No. 98112. Facts Emelita Basilio Gan (petitioner) was born on December 21, 1956 out of wedlock to Pia Gan, her father who is a Chinese national, and Consolacion Basilio, her mother who is a Filipino citizen. 3 The petitioner's birth certificate,4 which was registered in the Office of the Local Civil Registrar (LCR) of Libmanan, Camarines Sur, indicates

that

her

full

name

is

Emelita

Basilio.

On June 29, 2010, the petitioner filed a Petition 5 for correction of name with the Regional Trial Court (RTC) of Libmanan, Camarines Sur. The petitioner sought to change the full name indicated in her birth certificate from "Emelita

Basilio" to "Emelita Basilio Gan." She claimed that she had been using the name "Emelita Basilio Gan" in her school records from elementary until college, employment records, marriage contract, and other government records.6chanrobleslaw Ruling of the RTC On July 15, 2010, the RTC issued an Order, which noted that the petition filed sought not merely a correction of entry in the birth certificate, but a change of name. Accordingly, the RTC ordered the petitioner to make the necessary amendment to her petition to conform to the requirements of Rule 103 of the Rules of Court. 7chanrobleslaw The petitioner filed with the RTC an Amended Petition 8 dated August 3, 2010 for change of name. The amended petition contained substantially the same allegations as in the petition for correction of entry in the birth certificate. On August 10, 2010, the RTC set the initial hearing of the petition in a newspaper of general circulation. The Office of the Solicitor General (OSG), as counsel of the Republic of the Philippines (respondent), filed its notice of appearance. The OSG authorized the Office of the Provincial Prosecutor of Libmanan, Camarines Sur to appear and assist the OSG in the

proceedings

before

RTC. 9chanrobleslaw

the

On July 19, 2011, after due proceedings; the RTC of Libmanan, Camarines Sur, Branch 29, issued an Order 10 granting the petition for change of name. The RTC, thus, directed the LCR of Libmanan, Camarines Sur to change the petitioner's name in her birth certificate from "Emelita Basilio" to "Emelita Basilio Gan." The RTC opined that, from the evidence presented, the said petition was filed solely to put into order the records of the petitioner and that changing her name in her birth certificate into Emelita Basilio Gan would avoid confusion in her personal records.11chanrobleslaw The respondent sought a reconsideration12 of the RTC Order dated July 19, 2011, alleging that the petitioner, who is an illegitimate child, failed to adduce evidence that she was duly recognized by her father, which would have allowed her to use the surname of her father. 13 On October 17, 2011, the RTC issued an Order 14 denying the respondent's motion for reconsideration. Ruling of the CA On appeal, the CA, in its Decision 15 dated April 26, 2013, reversed and set aside the RTC Orders dated July 19, 2011 and October 17, 2011. The CA opined that pursuant to Article 176 of the Family Code, as amended by Republic Act No. 9255,16 the petitioner, as an illegitimate child, may only use the surname of her mother; she may only use the surname of her father if their filiation has been expressly recognized by her father. 17 The CA pointed out that the petitioner has not adduced any evidence showing that her father had recognized her as his illegitimate child and, thus, she

may

not

use

the

surname

of

her

father.18chanrobleslaw

In this petition for review, the petitioner maintains that the RTC correctly granted her petition since she only sought to have her name indicated in her birth certificate changed to avoid confusion as regards to her personal records. 19 She insists that her failure to present evidence that her father recognized her as his illegitimate child is immaterial; a change of name is reasonable and warranted, if it is necessary to avoid confusion. 20chanrobleslaw Ruling of the Court

The

petition

is

denied.

A change of name is a privilege and not a matter of right; a proper and reasonable cause must exist before a person may be authorized to change his name. 21 "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. x x x 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

courts." 22chanrobleslaw

the

After a judicious review of the records of this case, the Court agrees with the CA that the reason cited by the petitioner in support of her petition for change of name, i.e. that she has been using the name "Emelita Basilio Gan" in all of her records, is not a sufficient or proper justification to allow her petition. When the petitioner was born in 1956, prior to the enactment and effectivity of the Family Code, the pertinent provisions of the Civil Code then regarding the petitioner's use of surname provide:ChanRoblesVirtualawlibrary Article 366. A natural child acknowledged by both parents shall principally use the surname of the father. If recognized by only one of the parents, a natural child shall employ the surname of the recognizing parent. Article 368. Illegitimate children referred to in Article 287 shall bear the surname of the mother. In her amended petition for change of name, the petitioner merely stated that she was born out of wedlock; 23 she did not state whether her parents, at the time of her birth, were not disqualified by any impediment to marry each other, which would make her a natural child pursuant to Article 269 of the Civil Code. If, at the time of the petitioner's·birth, either of her parents had an impediment to marry the other, she may only bear the surname of her mother pursuant to Article 368 of the Civil Code. Otherwise, she may use the surname of her father provided that she was acknowledged by

her

father.

However, the petitioner failed to adduce any evidence that would show that she indeed was duly acknowledged by his father. The petitioner's evidence consisted only of her birth certificate signed by her mother, school records, employment records, marriage contract, certificate of baptism, and other government records. Thus, assuming that she is a natural child pursuant to Article 269 of the Civil Code, she could still not insist on using her father's surname. It was, thus, a blatant error on the part of the RTC to have allowed the petitioner to change her name from "Emelita Basilio"

to

"Emelita

Basilio

Gan."

The petitioner's reliance on the cases of Alfon v. Republic of the Philippines,24Republic of the Philippines v. CosetengMagpayo,25cralawred and Republic

of

the

Philippines

v.

Lim26 to

support

her

position

is

misplaced.

In Alfon, the name of the petitioner therein which appeared in her birth certificate was Maria Estrella Veronica Primitiva Duterte; she was a legitimate child of her father and mother. She filed a petition for change of name, seeking that she be allowed to use the surname "Alfon," her mother's surname, instead of "Duterte." The trial court denied the petition, ratiocinating that under Article 364 of the Civil Code, legitimate children shall principally use the surname of the father. The Court allowed the petitioner therein to use the surname of her mother since Article 364 of the Civil Code used the word "principally" and not "exclusively" and, hence, there is no legal obstacle if a legitimate child should choose to use the

mother's

surname

to

which

he

or

she

is

legally

entitled. 27chanrobleslaw

In contrast, Articles 366 and 368 of the Civil Code do not give to an illegitimate child or a natural child not acknowledged by the father the option to use the surname of the father. Thus, the petitioner cannot insist that she is allowed

to

use

the

surname

of

her

father.

In Coseteng-Magpayo, the issue was the proper procedure to be followed when the change sought to be effected in the birth certificate affects the civil status of the respondent therein from legitimate to illegitimate. The respondent therein claimed that his parents were never legally married; he filed a petition to change his name from "Julian Edward Emerson Coseteng Magpayo," the name appearing in his birth certificate, to "Julian Edward Emerson Marquez-Lim Coseteng." The notice setting the petition for hearing was published and, since there was no opposition thereto, the trial court; issued an order of general default and eventually granted the petition of the respondent therein by, inter alia, deleting the entry on the date and place of marriage of his parents and correcting his surname from "Magpayo" to "Coseteng."28 The Court reversed the trial court's decision since the proper remedy would have been to file a petition under Rule 108 of the Rules of Court. The Court ruled that the change sought by the respondent therein involves his civil status as a legitimate child; it may only be given due course through an adversarial proceedings under Rule 108 of the Rules of Court. The Court's pronouncement in Coseteng-Magpayo finds no application in this case. Finally, Lim likewise finds no application in this case. In Lim, the petition that was filed was for correction of entries under Rule 108 of the Rules of Court; the petition sought, among others, is the correction of the surname of the respondent therein from "Yo" to "Yu." Further, the respondent therein, although an illegitimate child, had long been using the surname of her father. It bears stressing that the birth certificate of the respondent therein indicated that her surname was the same as her father albeit misspelled. Thus, a correction of entry in her birth certificate is appropriate.29chanrobleslaw Here, the petitioner filed a petition for change of name under Rule 103 and not a petition for correction of entries under Rule 108. Unlike in Lim, herein petitioner's birth certificate indicated that she bears the surname of her mother and not of WHEREFORE, SO ORDERED.

her in

consideration

of

the

foregoing

father. disquisitions,

the

petition

is DENIED.