The Family Code on Surnames, Civil Registry
and Funerals
(Discussions on Arts. 149 to end of
Family Code- please see Older Posts/
Blog Archive)
Blog Archive)
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 the Philippines, 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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