Civil Law
Review I
Lecture Series
Atty. EDUARDO T. REYES, III
Lecture
No. 7.
Part
1
FUNERALS, SURNAMES, CIVIL REGISTER
Article 305. The duty and the right
to make arrangements for the funeral of a relative shall be in accordance with
the order established for support, under Article 294. In case of descendants of
the same degree, or of brothers and sisters, the oldest shall be preferred. In
case of ascendants, the paternal shall be preferred.
Comments:
Article
199 of the Family Code.
Spouse;
in his her absence or incapacity, the descendants in the nearest degree; in the
absence or incapacity of the latter, the ascendants in the nearest degree; and
finally, in the absence of all the said persons, the brothers and sisters.
Among brothers and sisters, the oldest shall be preferred. In case of
ascendants, the paternal shall have the right.
Surnames.
a. Legitimate and legitimated children:
shall principally bear the surname of their father.
b. Adopted children shall bear the
surname of the adopter.
c. Illegitimate children shall bear
the surname of their mother.
d. Surname of a married woman: A
married woman may use: 1. Her maiden first
name and surname and add her husband’s surname; or 2.Her maiden first name and
her husband’s surname; 3. Her husband’s full name but prefixing a word
indicating she is his wife, such as “Mrs.”
e. Surname of wife after annulment.
1. If she is guilty party, she SHALL resume her maiden name and surname. 2.If
she is the innocent spouse, MAY resume her maiden name and surname. However,
she may choose to continue employing her former husband’s surname, unless:
Court decrees otherwise or she or former husband is married again to another
person.
f. Widow may use deceased husband’s
surname as though he were living.
Middle name.
Hypothetical No. 1:
1. May a middle name be changed?
2. If the subject is a minor, may
his/ her parents petition such change on his/ her behalf?
Read: In Re: Petition for Change of
Name and/ or correction of Entry in the Civil Registry of Julian Lin Carulasan
Wang[1]
“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.
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.”
Hypothetical No. 2.
Pursuant to Article 365 of the Civil
Code in relation to Section 17, Article 5 of R.A. No. 8552 (Domestic Adoption
Act of 1998), “An adopted child shall bear the surname of the adopter”. Suppose,
a widower has a love child with a former girlfriend and so he adopts said love
child (an illegitimate child). Once the adoption decree is issued, what would
be the middle name of the adopted child?
Read:
IN THE MATTER OF THE ADOPTION OF STEPHANIE NATHY
ASTORGA GARCIA[2]
“Adoption is defined as the process of making a child, whether related or
not to the adopter, possess in general, the rights accorded to a legitimate
child. It is a juridical act, a proceeding in rem which creates
between two persons a relationship similar to that which results from
legitimate paternity and filiation. The modern trend is to consider
adoption not merely as an act to establish a relationship of paternity and
filiation, but also as an act which endows the child with a
legitimate status. This was, indeed, confirmed in 1989, when thePhilippines, as
a State Party to the Convention of the Rights of the Child initiated by
the United Nations, accepted the principle that adoption is impressed with
social and moral responsibility, and that its underlying intent is geared to
favor the adopted child. Republic Act No. 8552, otherwise known as
the Domestic Adoption Act of 1998, secures these rights and
privileges for the adopted.
One of the effects of adoption is that the
adopted is deemed to be a legitimate child of the adopter for all intents and
purposes pursuant to Article 189 of the Family Code and Section
17 Article V of RA 8552.
Being a legitimate child by virtue of her
adoption, it follows that Stephanie is entitled to all the rights provided by
law to a legitimate child without discrimination of any kind, including the
right to bear the surname of her father and her mother, as discussed above. This is consistent with the intention of
the members of the Civil Code and Family Law Committees as earlier discussed. In
fact, it is a Filipino custom that the initial or surname of the mother should
immediately precede the surname of the father.
Additionally, as aptly stated by both
parties, Stephanies continued use of her mothers surname (Garcia) as her middle
name will maintain her maternal lineage. It is to be noted that Article 189(3)
of the Family Code and Section 18, Article V of RA 8552 (law on adoption)
provide that the adoptee remains an intestate heir of his/her biological
parent. Hence, Stephanie can well assert or claim her hereditary rights from
her natural mother in the future.
Moreover, records show that Stephanie and her
mother are living together in the house built by petitioner for them at 390
Tumana, San Jose, Baliuag, Bulacan. Petitioner provides for all their needs.
Stephanie is closely attached to both her mother and father. She calls them
Mama and Papa. Indeed, they are one normal happy family. Hence, to allow
Stephanie to use her mothers surname as her middle name will not only sustain
her continued loving relationship with her mother but will also eliminate the
stigma of her illegitimacy.”
Here,
the father adopted his own illegitimate child when he became a widower. What if
it involves a joint adoption where his legitimate spouse was still alive? What
middle name should the adopted child use, that of the wife adopter or the
biological mother? given that the middle name is supposed to “serve to identify
maternal lineage?
Presumption of Death.
Articles 390 and 391
of the New Civil Code juxtaposed with Article 41 of the family Code.
Article
41 FC- Judicial declaration is necessary because it is for purposes of
remarriage.
Articles
390 and 391.- No need of judicial declaration. Lapse of required period –
7
years under normal circumstances.
10
years- for purposes of opening his succession
5
years- if he disappeared after the age of 75 for purposes of opening his
succession
4
years- a person on board a vessel lost during a sea voyage or a missing
airplane; person in armed forces who took part in a war; a person who was in
danger of death.
Civil Registry.
-Recall the case of
Corpus v. Sto. Tomas[3],
involving
a former Filipino spouse who became a foreigner and seeks recognition of
foreign decree under Art. 26 of the Family Code.
Article
408 NCC on “what shall be entered in the civil register”.
Ø What kind of
proceeding is required in a petition for correction or entries and in change of
name, nationality, etc.
“If the correction
sought to be made in the civil registrar is clerical, then the procedure to be
adopted is summary. Of the rectification affects civil status, citizenship or
nationality of a party, it is deemed substantial, and the procedure to be
adopted is adversarial.”[4]
“Hence, for as long
as the relevant facts have been fully and properly developed, where the
opposing counsel is given the opportunity to demolish the opposite party’s
case, and the evidence is thoroughly weighed and considered, the proceeding is
an adversary or appropriate proceeding.”[5]
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