A. Persons

Atty. Jericho Del Puerto

Atty. Jericho Del Puerto

Lawyer, Author, Mentor

1. Civil personality

There are two (2) kinds of persons under the law:

1) Natural persons, and,

2) Juridical persons.

a. Natural persons

BIRTH AND PERSONALITY: Birth determines personality; but the conceived child shall be considered born for all purposes that are favorable to it, provided it be born later with the conditions specified in the following article. (Article 40, Ibid.)

FETUS; WHEN CONSIDERED BORN: For civil purposes, the fetus is considered born if it is alive at the time it is completely delivered from the mother’s womb. However, if the fetus had an intra-uterine life of less than seven months, it is not deemed born if it dies within twenty-four hours after its complete delivery from the maternal womb. (Article 41, Ibid.)

DEATH: Civil personality is extinguished by death.(Article 42, Ibid.)

SAME; EFFECTS: The effect of death upon the rights and obligations of the deceased is determined by law, by contract and by will. (Paragraph 2, Article 42, Ibid.)

SAME; PRESUMPTIONS – ON WHO DIED FIRST BETWEEN PERSONS CALLED TO SUCCEED EACH OTHER: If there is a doubt, as between two or more persons who are called to succeed each other, as to which of them died first, whoever alleges the death of one prior to the other, shall prove the same; in the absence of proof, it is presumed that they died at the same time and there shall be no transmission of rights from one to the other. (Article 43, Ibid.)

b. Juridical persons

The following are juridical persons:

1) The State and its political subdivisions;

2) Other corporations, institutions and entities for public interest or purpose, created by law; their personality begins as soon as they have been constituted according to law;

3) Corporations, partnerships and associations for private interest or purpose to which the law grants a juridical personality, separate and distinct from that of each shareholder, partner or member. (Article 44, Ibid.)

RIGHTS: Juridical persons may acquire and possess property of all kinds, as well as incur obligations and bring civil or criminal actions, in conformity with the laws and regulations of their organization. (Article 46, Ibid.)

2. Use of surnames

a. Children

1) Legitimate children

Legitimate children shall principally use the surname of the father. (Article 364. Civil Code)

2) Illegitimate children

GENERAL RULE:Legitimated children shall principally use the surname of the father. (Ibid.)

EXCEPTION:Illegitimate children referred to in Article 287 shall bear the surname of the mother. (Article 368, Ibid.)

Cross-referenced articles

Illegitimate children other than natural in accordance with Article 269 and other than natural children by legal fiction are entitled to support and such successional rights as are granted in this Code. (Art. 287, Ibid.)

Only natural children can be legitimated. Children born outside wedlock of parents who, at the time of the conception of the former, were not disqualified by any impediment to marry each other, are natural. (Art. 269, Ibid.)

3) Adopted children

An adopted child shall bear the surname of the adopter. (Article 365, Ibid.)

4) Natural children

IF ACKNOWLEDGED BY BOTH PARENTS: A natural child acknowledged by both parents shall principally use the surname of the father. (Article 366, Ibid.)

IF ACKNOWLEDGED BY ONE PARENT ONLY: If recognized by only one of the parents, a natural child shall employ the surname of the recognizing parent. (Ibid.)

BY LEGAL FICTION: Natural children by legal fiction shall principally employ the surname of the father. (Ibid.)

5) Conceived before annulment decree

Children conceived before the decree annulling a voidable marriage shall principally use the surname of the father. (Article 369, Ibid.)

b. 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, or

3) Her husband’s full name, but prefixing a word indicating that she is his wife, such as “Mrs.”(Article 370, Ibid.)

ANNULMENT; IF WIFE IS GUILTY: In case of annulment of marriage, and the wife is the guilty party, she shall resume her maiden name and surname. If she is the innocent spouse, she may resume her maiden name and surname. (Article 371, Ibid.)

SAME; IF WIFE IS INNOCENT: If she is the innocent spouse, she may resume her maiden name and surname. However, she may choose to continue employing her former husband’s surname, unless:

1) The court decrees otherwise, or

2) She or the former husband is married again to another person. (Ibid.)

LEGAL SEPARATION: When legal separation has been granted, the wife shall continue using her name and surname employed before the legal separation. (Article 372, Ibid.)

WIDOWED: A widow may use the deceased husband’s surname as though he were still living, in accordance with Article 370. (Article 373, Ibid.)

c. Identity of names and surnames

ADDITIONAL NAME/SURNAME FOR YOUNDER PERSON: In case of identity of names and surnames, the younger person shall be obliged to use such additional name or surname as will avoid confusion. (Article 374, Ibid.)

USE OF “JR.” OR JUNIOR; ROMAN NUMERALS: In case of identity of names and surnames between ascendants and descendants, the word “Junior” can be used only by a son. Grandsons and other direct male descendants shall either:

1) Add a middle name or the mother’s surname, or

2) Add the Roman Numerals II, III, and so on. (Article 375, Ibid.)

d. Judicial authority for change of name or surname

No person can change his name or surname without judicial authority. (Article 376, Ibid.)

e. Usurpation of name and surname

ACTION FOR DAMAGES AND OTHER RELIEF: Usurpation of a name and surname may be the subject of an action for damages and other relief. (Article 377, Ibid.)

The unauthorized or unlawful use of another person’s surname gives a right of action to the latter. (Article 378, Ibid.)

f. Pen names or stage names

The employment of pen names or stage names is permitted, provided it is done in good faith and there is no injury to third persons. Pen names and stage names cannot be usurped. (Article 379, Ibid.)

g. Prohibition on using different names and surnames

Except as provided in the preceding article [on pen manes and stage names], no person shall use different names and surnames. (Article 380, Ibid.)

3. Entries in the Civil Registry and Clerical Error Law (R.A. No. 9048, as amended)

a. Concept

Acts, events and judicial decrees concerning the civil status of persons shall be recorded in the civil register. (Article 407, Civil Code)

COVERAGE OF RECORDING: Under the Civil Code, 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 of citizenship;

12) Recovery of citizenship;

13) Civil interdiction;

14) Judicial determination of filiation;

15) Voluntary emancipation of a minor; and

16) Changes of name.  (Article 408, Ibid.)

Under the Family Code, the following shall be entered in the civil register:

1) Those officiating/solemnizing marriages;

2) Applications for marriages (Article 25, Family Code)

b. Responsibility of Civil Registrar

No entry in a civil register shall be changed or corrected, without a judicial order. (Article 412, Civil Code)

1) Protection of civil register

CIVIL RESPONSIBILITY: Every civil registrar shall be civilly responsible for any unauthorized alteration made in any civil register, to any person suffering damage thereby. (Article 411, Ibid.)

SAME; DEFENSE: However, the civil registrar may exempt himself from such liability if he proves that he has taken every reasonable precaution to prevent the unlawful alteration. (Ibid.)

2) Processing of marriage application

Where a marriage license is required, each of the contracting parties shall file separately a sworn application for such license with the proper local civil registrar. (Article 11, Family Code)

a) Birth or baptismal requirement

ORIGINAL BIRTH CERTIFICATES, ETC.: The local civil registrar, upon receiving the marriage application, shall require the presentation of the original birth certificates or, in default thereof, the baptismal certificates of the contracting parties or copies of such documents duly attested by the persons having custody of the originals. These certificates or certified copies of the documents by this Article need not be sworn to and shall be exempt from the documentary stamp tax. The signature and official title of the person issuing the certificate shall be sufficient proof of its authenticity. (Ibid.)

Alternative: Residence certificate or sworn instrument

If either of the contracting parties is unable to produce his birth or baptismal certificate or a certified copy of either because of the destruction or loss of the original or if it is shown by an affidavit of such party or of any other person that such birth or baptismal certificate has not yet been received though the same has been required of the person having custody thereof at least fifteen days prior to the date of the application, such party may furnish in lieu thereof his current residence certificate or an instrument drawn up and sworn to before the local civil registrar concerned or any public official authorized to administer oaths. Such instrument shall contain the sworn declaration of two witnesses of lawful age, setting forth the full name, residence and citizenship of such contracting party and of his or her parents, if known, and the place and date of birth of such party. The nearest of kin of the contracting parties shall be preferred as witnesses, or, in their default, persons of good reputation in the province or the locality.(Paragraph 2, Article 12, Ibid.)

SAME; WHEN NOT REQUIRED: The presentation of birth or baptismal certificate shall not be required if the parents of the contracting parties appear personally before the local civil registrar concerned and swear to the correctness of the lawful age of said parties, as stated in the application, or when the local civil registrar shall, by merely looking at the applicants upon their personally appearing before him, be convinced that either or both of them have the required age. (Paragraph 3, Article 12, Ibid.)

b) Consent to marry

In case either or both of the contracting parties, not having been emancipated by a previous marriage, are between the ages of eighteen and twenty-one, they shall, in addition to the requirements of the preceding articles, exhibit to the local civil registrar, the consent to their marriage of their father, mother, surviving parent or guardian, or persons having legal charge of them, in the order mentioned. Such consent shall be manifested in writing by the interested party, who personally appears before the proper local civil registrar, or in the form of an affidavit made in the presence of two witnesses and attested before any official authorized by law to administer oaths. The personal manifestation shall be recorded in both applications for marriage license, and the affidavit, if one is executed instead, shall be attached to said applications. (Article 14, Ibid.)

3) Notice and publication

The local civil registrar shall prepare a notice which shall contain the full names and residences of the applicants for a marriage license and other data given in the applications. The notice shall be posted for ten consecutive days on a bulletin board outside the office of the local civil registrar located in a conspicuous place within the building and accessible to the general public. This notice shall request all persons having knowledge of any impediment to the marriage to advise the local civil registrar thereof. The marriage license shall be issued after the completion of the period of publication. (Article 17, Ibid.)

In case of any impediment known to the local civil registrar or brought to his attention, he shall note down the particulars thereof and his findings thereon in the application for marriage license, but shall nonetheless issue said license after the completion of the period of publication, unless ordered otherwise by a competent court at his own instance or that of any interest party. No filing fee shall be charged for the petition nor a corresponding bond required for the issuances of the order. (Article 18, Ibid.)

4) Charge fees

The local civil registrar shall require the payment of the fees prescribed by law or regulations before the issuance of the marriage license. No other sum shall be collected in the nature of a fee or tax of any kind for the issuance of said license. It shall, however, be issued free of charge to indigent parties, that is those who have no visible means of income or whose income is insufficient for their subsistence a fact established by their affidavit, or by their oath before the local civil registrar. (Article 19, Ibid.)

5) Issuance of marriage license

A marriage license shall be issued by the local civil registrar of the city or municipality where either contracting party habitually resides, except in marriages where no license is required.(Article 9, Ibid.)

The local civil registrar concerned shall enter all applications for marriage licenses filed with him in a registry book strictly in the order in which the same are received. He shall record in said book the names of the applicants, the date on which the marriage license was issued, and such other data as may be necessary. (Article 25, Ibid.)

6) Receipt of marriage certificates and affidavits, if any

It shall be the duty of the person solemnizing the marriage to furnish either of the contracting parties the original of the marriage certificate referred to in Article 6 and to send the duplicate and triplicate copies of the certificate not later than fifteen (15) days after the marriage, to the local civil registrar of the place where the marriage was solemnized. Proper receipts shall be issued by the local civil registrar to the solemnizing officer transmitting copies of the marriage certificate. The solemnizing officer shall retain in his file the quadruplicate copy of the marriage certificate, the copy of the marriage certificate, the original of the marriage license and, in proper cases, the affidavit of the contracting party regarding the solemnization of the marriage in place other than those mentioned in Article 8. (Article 23, Ibid.)

In the cases [of articulo mortis or physical impossibility of transport from distant residence], the solemnizing officer shall state in an affidavit executed before the local civil registrar or any other person legally authorized to administer oaths that the marriage was performed in articulo mortis or that the residence of either party, specifying the barrio or barangay, is so located that there is no means of transportation to enable such party to appear personally before the local civil registrar and that the officer took the necessary steps to ascertain the ages and relationship of the contracting parties and the absence of legal impediment to the marriage. (Article 29, Ibid.)

The original of the affidavit required in the last preceding article, together with the legible copy of the marriage contract, shall be sent by the person solemnizing the marriage to the local civil registrar of the municipality where it was performed within the period of thirty days after the performance of the marriage. (Article 30, Ibid.)

7) Duty to prepare other documents for marriage

It shall be the duty of the local civil registrar to prepare the documents required by this Title, and to administer oaths to all interested parties without any charge in both cases. The documents and affidavits filed in connection with applications for marriage licenses shall be exempt from documentary stamp tax. (Article 24, Ibid.)

8) All other matters, Special Laws

All other matters pertaining to the registration of civil status shall be governed by special laws. (Article 413, Civil Code)

b. Civil Registry Books

AS PUBLIC DOCUMENTS: The books making up the civil register and all documents relating thereto shall be considered public documents and shall be prima facie evidence of the facts therein contained. (Article 410, Ibid.)

JUDICIAL ORDERS: In cases of legal separation, adoption, naturalization and other judicial orders,  it shall be the duty of the clerk of the court which issued the decree to ascertain whether the same has been registered, and if this has not been done, to send a copy of said decree to the civil registry of the city or municipality where the court is functioning. (Article 409, Ibid.)

c. Special Circumstances

DELEGATION TO CONSULAR OFFICIALS: Marriages between Filipino citizens abroad may be solemnized by a consul-general, consul or vice-consul of the Republic of the Philippines. The issuance of the marriage license and the duties of the local civil registrar and of the solemnizing officer with regard to the celebration of marriage shall be performed by said consular official. (Article 10, Family Code)

4. Absence

a. Civil Code provisions

1) Court-appointed representative or administrator

When a person disappears from his domicile, his whereabouts being unknown, and without leaving an agent to administer his property, the judge, at the instance of an interested party, a relative, or a friend, may appoint a person to represent him in all that may be necessary.(Article 381, Civil Code)

This same rule shall be observed when under similar circumstances the power conferred by the absentee has expired. (Paragraph 2, Article 381, Ibid.)

2) Rules of guardianship

The appointment referred to in the preceding article having been made, the judge shall take the necessary measures to safeguard the rights and interests of the absentee and shall specify the powers, obligations and remuneration of his representative, regulating them, according to the circumstances, by the rules concerning guardians. (Article 382, Ibid.)

3) Preference on spouse present – if no legal separation

In the appointment of a representative, the spouse present shall be preferred when there is no legal separation. (Article 383, Ibid.)

If the absentee left no spouse, or if the spouse present is a minor, any competent person may be appointed by the court. (Paragraph 2, Article 383, Ibid.)

4) Waiting periods

2-YEAR WAITING PERIOD: Two years having elapsed without any news about the absentee or since the receipt of the last news, his absence may be declared. (Article 384, Ibid.)

5-YEAR WAITING PERIOD: Five years in case the absentee has left a person in charge of the administration of his property, his absence may be declared. (Ibid.)

5) Who may ask for declaration of absence

The following may ask for the declaration of absence:

1) The spouse present;

2) The heirs instituted in a will, who may present an authentic copy of the same;

3) The relatives who may succeed by the law of intestacy;

4) Those who may have over the property of the absentee some right subordinated to the condition of his death. (Article 385, Ibid.)

6) 6-month waiting period for effectivity

The judicial declaration of absence shall not take effect until six months after its publication in a newspaper of general circulation. (Article 386, Ibid.)

7) Court-appointed administrator

a) Preference on spouse present – if no legal separation

An administrator of the absentee’s property shall be appointed in accordance with Article 383. (Article 387, Ibid.)

Cross-referenced article

Art. 383. In the appointment of a representative, the spouse present shall be preferred when there is no legal separation.

If the absentee left no spouse, or if the spouse present is a minor, any competent person may be appointed by the court.

b) Wife as administratrix

The wife who is appointed as an administratrix of the husband’s property cannot alienate or encumber the husband’s property, or that of the conjugal partnership, without judicial authority. (Article 388, Ibid.)

8) Termination of administration

The administration shall cease in any of the following cases:

1) When the absentee appears personally or by means of an agent;

2) When the death of the absentee is proved and his testate or intestate heirs appear;

3) When a third person appears, showing by a proper document that he has acquired the absentee’s property by purchase or other title.(Article 389, Ibid.)

In these cases the administrator shall cease in the performance of his office, and the property shall be at the disposal of those who may have a right thereto. (Paragraph 2, Article 389, Ibid.)

b. Presumptive death of absent spouse under the Family Code

1) Purposes for presumption of death

a) For non-succession purposes

7-YEAR ABSENCE: After an absence of seven years, it being unknown whether or not the absentee still lives, he shall be presumed dead for all purposes, except for those of succession. (Article 390, Ibid.)

b) For succession purposes

10-YEAR ABSENCE: The absentee shall not be presumed dead for the purpose of opening his succession till after an absence of ten years. (Paragraph 2, Article 390, Ibid.)

5-YEAR ABSENCE – FOR 75 Y.O.:If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order that his succession may be opened. (Paragraph 2, Article 390, Ibid.)

c) For all purposes

The following shall be presumed dead for all purposes, including the division of the estate among the heirs:

1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard of for four years since the loss of the vessel or aeroplane;

2) A person in the armed forces who has taken part in war, and has been missing for four years;

3) A person who has been in danger of death under other circumstances and his existence has not been known for four years. (Article 391, Ibid.)

2) Reapperance of absentee

RECOVERY OF PROPERTY/PRICE – IF SOLD: If the absentee appears, or without appearing his existence is proved, he shall recover his property in the condition in which it may be found, and the price of any property that may have been alienated or the property acquired therewith. (Article 392, Ibid.)

NO RECOVERY OF FRUITS/RENTS: But he cannot claim either fruits or rents. (Ibid.)

3) Contingent rights of absentee

a) Claimant to a right pertaining to absentee

PROOF OF LIFE: Whoever claims a right pertaining to a person whose existence is not recognized must prove that he was living at the time his existence was necessary in order to acquire said right. (Article 393, Ibid.)

b) Opening of succession

REPRESENTATION VIA HEIRS/ASSIGNS/REPRESENTATIVE: Without prejudice to the provision of the preceding article, upon the opening of a succession to which an absentee is called, his share shall accrue to his co-heirs, unless he has heirs, assigns, or a representative. They shall all, as the case may be, make an inventory of the property. (Article 394, Ibid.)

c) Non-prejudicial to petition for inheritance or other rights

The provisions of the preceding article are understood to be without prejudice to the action of petition for inheritance or other rights which are vested in the absentee, his representatives or successors in interest. These rights shall not be extinguished save by lapse of time fixed for prescription. In the record that is made in the Registry of the real estate which accrues to the coheirs, the circumstance of its being subject to the provisions of this article shall be stated. (Article 395, Ibid.)

d) Appropriation of fruits in good faith

Those who may have entered upon the inheritance shall appropriate the fruits received in good faith so long as the absentee does not appear, or while his representatives or successors in interest do not bring the proper actions. (Article 396, Ibid.)

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