When may children be allowed to use the surname of their step-fathers even without the benefit of adoption

The principle that disallows change of name as would give the false impression of family relationship remains valid but only to the extent that the proposed change of name would in great probability cause prejudice or future mischief to the family whose surname it is that is involved or to the community in general.

Facts: Atanacia Llaneta was married with Serafin Ferrer whom she had a child named Victoriano Ferrer. Serafin died and about four years later Atanacia had a relationship with another man out of which Teresita Llaneta, herein petitioner, was born. All of them lived with Serafin’s mother in Manila. Teresita was raised in the household of the Ferrer’s using the surname of Ferrer in all her dealings throughout her schooling. When she was 21 years old, she applied for a copy of her birth certificate in Sorsogon as it is required to be presented in connection with a scholarship grant. It was then that she discovered that her registered surname was Llaneta and that she was the illegitimate child of Atanacia and an unknown father.  

She then filed a petition for change of name from Teresita Llaneta to Teresita Llaneta Ferrer on the ground that her use thenceforth of the surname Llaneta, instead of Ferrer, which she had been using, would cause untold difficulties and confusion. 

Serafin Ferrer's widowed mother, Victoria, and his two remaining brothers, Nehemias and Ruben, have come forward in earnest support of the petition. The petition was published without eliciting the slightest opposition from the relatives and friends of the late Serafin Ferrer. The State (represented by the Solicitor General's Office), likewise interposed no opposition at the trial after a searching cross-examination, of Teresita and her witnesses.

After trial, the respondent judge denied the petition on the ground that the change of name would give the false impression that Teresita is a legitimate daughter of Serafin.

Issue: Whether Teresita can have her surname changed to Ferrer.

Held: Teresita has established that she has been using the surname Ferrer for as long as she can remember. A sudden shift at this time by Teresita to the name Teresita Llaneta in order to conform to that appearing in her birth certificate would result in confusion among the persons and entities she deals with and entail endless and vexatious explanations of the circumstances of her new surname.

The principle that disallows change of name as would give the false impression of family relationship, relied by the respondent judge, remains valid but only to the extent that the proposed change of name would in great probability cause prejudice or future mischief to the family whose surname it is that is involved or to the community in general. (Llaneta vs Agrava, GR No. 32054, May 15, 1974). 

Note: The court granted the petition because Teresita was an illegitimate child. In the case of Republic vs. CA, G.R. No. 88202, December 14, 1998, the court denied the petition because the petitioner was a legitimate child. The law requires that legitimate children shall principally use the surname of their father.

A married woman has an option, but not a duty, to use the surname of the husband

Title XIII of the Civil Code governs the use of surnames. In the case of a married woman, Article 370 of the Civil Code provides:

ART. 370. A married woman may use:

(1) her maiden first name and surname and add her husbands surname, or

(2) her maiden first name and her husband's surname, or

(3) her husbands full name, but prefixing a word indicating that she is his wife, such as mrs.

We agree with petitioner that the use of the word may in the above provision indicates that the use of the husbands surname by the wife is permissive rather than obligatory. Clearly, a married woman has an option, but not a duty, to use the surname of the husband in any of the ways provided by Article 370 of the Civil Code. She is therefore allowed to use not only any of the three names provided in Article 370, but also her maiden name upon marriage. She is not prohibited from continuously using her maiden name once she is married because when a woman marries, she does not change her name but only her civil status. Further, this interpretation is in consonance with the principle that surnames indicate descent. [Ma. Virginia V. Remo vs. The Honorable Secretary of Foreign Affairs, G.R. No. 169202, March 5, 2010]

See Remo vs Sec. of Foreign Affairs case digest

Can a married woman revert to the use of her maiden name?

For passport issuance purposes, a married woman whose marriage subsists, may not change her family name at will.

Facts: Maria Virginia V. Remo is a married Filipino citizen. Being married to Francisco R. Rallonza, the following entries appear in her passport: “Rallonza” as her surname, “Maria Virginia” as her given name, and “Remo” as her middle name. She applied for her passport’s renewal with the DFA office in Chicago, Illinois, USA with a request to revert to her maiden name and surname in the replacement passport. The DFA refused to grant Virginia’s petition on the basis of RA 8239 (the law on the issuance of passports). According to the DFA, Section 5(d) of the said law “limits the instances when a married woman may be allowed to revert to the use of her maiden name in her passport. These instances are death of husband, divorce decree, annulment or nullity of marriage. None of these conditions is present in Remo’s case, the DFA said. 

Remo appealed contending that when a woman marries, she does not change her name but only her civil status so she can still use her maiden name. In fact article 370 of the Civil Code uses the word “may” in enumerating the ways of using her husband’s surname. In said article she may use her maiden first name and surname and add her husband’s surname, or her maiden first name and husband’ surname, or her husband’s full name but prefixing a word indicating that she is his wife, such as “Mrs”. This provision is merely permissive but not obligatory. But RA 8239 prohibiting her to revert to her maiden name in the replacement passport conflicts with, and, thus operate as an implied repeal of Article 370 of the Civil Code. Was Remo correct?

Held: There is no conflict between Article 370 of the Civil Code and Section 5 (d) RA 8239. RA 8239 and its implementing rules and regulations, does not prohibit a married women from using her maiden name in her passport. In fact, in recognition of this right, the DFA allows a married woman who applies for a passport to use her maiden name. However once a married woman opted to adopt her husband’s surname in her passport, she may not revert to the use of her maiden name except in cases of (1) death of the husband, (2) divorce (3) annulment, or (4) declaration of nullity of marriage. Since Remo’s marriage subsists, she may not resume her maiden name in the replacement passport.

Even assuming there is a conflict, the provisions of RA 8239 which is a special law specifically dealing with passport issuance must prevail over the general provisions of the Civil Code on the use of surnames. A special law prevails over a general law.

Moreover, well entrenched is the rule that an implied repeal is disfavored. The apparently conflicting provisions of two laws should be harmonized as much as possible, so that each shall be effective. For a law to repeal another law, the two laws must actually be inconsistent and repugnant as to be irreconcilable. Remo failed to establish this fact.

Remo would not have encountered any problems in the replacement passport had she opted to continuously and consistently use her maiden name from the moment she was married and from the time she first applied for a Philippine passport. However, she consciously chose to use her husbands surname before, in her previous passport application, and now desires to resume her maiden name. If this is allowed, nothing prevents her in the future from requesting to revert to the use of her husbands surname. Such unjustified changes in one's name and identity in a passport, which is considered superior to all other official documents, cannot be countenanced. Otherwise, undue confusion and inconsistency in the records of passport holders will arise. [Ma. Virginia V. Remo vs. The Honorable Secretary of Foreign Affairs,” G.R. No. 169202, March 5, 2010]

A fake affidavit of cohabitation renders the marriage void from the very beginning

A fake affidavit of cohabitation executed by both parties intending to marry each other, in order to exempt them from the requirement of a marriage license, without complying with the 5-year period of cohabitation required by law, renders the marriage void from the very beginning. 

Facts: Annabelle and Reinel applied for a marriage license. When they went back to the Office of the City Civil Registrar, they discovered that their marriage license was already expired, so in order to get married as soon as possible, they executed an Affidavit to show that they had been living together as husband and wife for the last five years, hence, exempt from the marriage license requirement. (Article 34 of the Family Code). They were married on the same day before a judge. After their marriage, they never lived together as husband and wife. After several months, Annabelle gave birth to Reianna Tricia. In 1998, Annabelle filed a petition for support against Reinel, claiming he had not given support to her and their child.  Reinel in his answer alleged that their marriage is not valid, the Affidavit they executed in lieu of a marriage license being a falsity as they never cohabited with each other five years before their marriage, hence they were not exempted from the requirement of a marriage license. What is the effect of the fake affidavit of cohabitation Annabelle and Reinel executed?

Held: The falsity of the affidavit cannot be considered as a mere irregularity in the formal requisites of marriage. The law dispenses with the marriage license requirement for a man and a woman who have lived together and exclusively with each other as husband and wife for a continuous and unbroken period of at least five years before the marriage. The aim of this provision is to avoid exposing the parties to humiliation, shame and embarrassment concomitant with the scandalous cohabitation of persons outside a valid marriage due to the publication of every applicant’s name for a marriage license. In the instant case, there was no “scandalous cohabitation” to protect; in fact, there was no cohabitation at all. The false affidavit which petitioner and respondent executed so they could push through with the marriage has no value whatsoever; it is a mere scrap of paper. They were not exempt from the marriage license requirement. Their failure to obtain and present a marriage license renders their marriage void ab initio. [De Castro vs De Castro, G.R. No. 160172, February 13, 2008]

The validity of a void marriage may be collaterally attacked

The court may pass upon the validity of marriage even in a suit not directly instituted to question the same so long as it is essential to the determination of the case.

Facts: Annabelle and Reinel were married. Annabelle filed a petition for support against Reinel, claiming he had not given support to her and their child.  In his answer, Reinel alleged that their marriage is not valid, the Affidavit they executed in lieu of a marriage license being a falsity as they never cohabited with each other five years before their marriage, hence they were not exempted from the requirement of a marriage license. He also denied parentage of the child. The trial court ruled that the marriage between Reinel and Annabelle is void for lack of a marriage license. The Court of Appeals, however, ruled that since the case is for support, the court cannot attack collaterally the marriage, so that a proper judicial declaration should be resorted to in order to declare the marriage of Reinel and Annabelle as void for lack of a marriage license. 

Issue: May the trial court declare the marriage between Reinel and Annabelle even though the case before it is for support? In other words, may the marriage be attacked collaterally?

Held: The trial court had jurisdiction to determine the validity of the marriage between petitioner and respondent. The validity of a void marriage may be collaterally attacked. Thus, in Niñal v. Bayadog, we held:

However, other than for purposes of remarriage, no judicial action is necessary to declare a marriage an absolute nullity. For other purposes, such as but not limited to determination of heirship, legitimacy or illegitimacy of a child, settlement of estate, dissolution of property regime, or a criminal case for that matter, the court may pass upon the validity of marriage even in a suit not directly instituted to question the same so long as it is essential to the determination of the case. This is without prejudice to any issue that may arise in the case. When such need arises, a final judgment of declaration of nullity is necessary even if the purpose is other than to remarry. The clause “on the basis of a final judgment declaring such previous marriage void” in Article 40 of the Family Code connotes that such final judgment need not be obtained only for purpose of remarriage.”

Likewise, in Nicdao Cario v. Yee Cario, the Court ruled that it is clothed with sufficient authority to pass upon the validity of two marriages despite the main case being a claim for death benefits. Reiterating Nial, we held that the Court may pass upon the validity of a marriage even in a suit not directly instituted to question the validity of said marriage, so long as it is essential to the determination of the case. However, evidence must be adduced, testimonial or documentary, to prove the existence of grounds rendering such a marriage an absolute nullity. [De Castro vs De Castro, G.R. No. 160172, February 13, 2008]

Even after the legal separation, wife shall continue using her name and surname employed before the legal separation

May a wife resume using her maiden name after a legal separation has been decreed?

Facts: After Elisea L. Santamaria was decreed legally separated from her husband Enrique R. Santamaria, Elisea filed a petition praying that she be allowed to resume using her maiden name Elisea LAPERAL. The trial court denied the petition for the reason that Article 372 of the Civil Code requires the wife, even after she is decreed legally separated from her husband, to continue using the name and surname she employed before the legal separation. Upon Elisea's motion, however, the court, treating the petition as one for change of name, reconsidered its decision and granted the petition on the ground that to allow petitioner, who is a businesswoman decreed legally separated from her husband, to continue using her married name would give rise to confusion in her finances and the eventual liquidation of the conjugal assets. Hence, the state appealed.

Held: Article 372 of the Civil Code reads:

ART. 372. When legal separation has been granted, the wife shall continue using her name and surname employed before the legal separation.

The language of the statute is mandatory that the wife, even after the legal separation has been decreed, shall continue using her name and surname employed before the legal separation. This is so because her married status is unaffected by the separation, there being no severance of the vinculum. It seems to be the policy of the law that the wife should continue to use the name indicative of her unchanged status for the benefit of all concerned. 

Even applying Rule 103 (which refers to change of name in general), the fact of legal separation alone — which is the only basis for the petition — is, not a sufficient ground to justify a change of the name of petitioner, for to hold otherwise would be to provide an easy circumvention of the mandatory provisions of Article 372.

The finding that petitioner’s continued use of her husband surname may cause undue confusion in her finances was without basis.  It must be considered that the issuance of the decree of legal separation in 1958, necessitate that the conjugal partnership between her and Enrique had automatically been dissolved and liquidated. Hence, there could be no more occasion for an eventual liquidation of the conjugal assets. [Laperal vs. Republic, GR No. L-18008, October 30, 1962]