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Persons and Family Relations Jurisprudence/full text Family Code Art 407-413 Civil Register

Silverio v Republic
Silverio v Republic

be trapped in a man’s body is not his own doing and should not be in any

FIRST DIVISION

way taken against him.

G.R. No. 174689 October 22, 2007

Likewise, the [c]ourt believes that no harm, injury [or] prejudice will be

ROMMEL JACINTO DANTES SILVERIO, petitioner, vs. REPUBLIC OF THE PHILIPPINES, respondent.

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.

D E C I S I O N

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.

CORONA, J.:

When God created man, He made him in the likeness of God; He created

WHEREFORE, judgment is hereby rendered GRANTING the petition and ordering the Civil Registrar of Manila to change the entries appearing in the

them male and female. (Genesis 5:1-2)

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.

Amihan gazed upon the bamboo reed planted by Bathala and she heard

5

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)

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 Appeals7 rendered a decision8 in favor

When is a man a man and when is a woman a woman? In particular, does

of the Republic. It ruled that the trial court’s decision lacked legal basis.

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

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

petition for a change of name and sex appearing in the birth certificate to

of Appeals granted the Republic’s petition, set aside the decision of the trial

reflect the result of a sex reassignment surgery?

court and ordered the dismissal of SP Case No. 02-105207. Petitioner moved for reconsideration but it was denied.9 Hence, this petition.

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. 02-105207, impleaded the civil registrar of Manila as respondent.

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

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.

The petition lacks merit.

His name was registered as "Rommel Jacinto Dantes Silverio" in his

A Person’s First

Name Cannot Be Changed On the Ground of Sex

certificate of live birth (birth certificate). His sex was registered as "male."

Reassignment

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

Petitioner invoked his sex reassignment as the ground for his petition for change of name and sex. As found by the trial court:

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

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)

thereafter examined by Dr. Marcelino Reysio-Cruz, Jr., a plastic and reconstruction surgeon in the Philippines, who issued a medical certificate

Petitioner believes that after having acquired the physical features of a

attesting that he (petitioner) had in fact undergone the procedure.

female,

he became

entitled to

the

civil

registry changes

sought. We

disagree.

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.

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:

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 decision4 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

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.

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RA 9048 likewise provides the grounds for which change of first name may be allowed:

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

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.

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)

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:

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.

SECTION 2. Definition of Terms. As used in this Act, the following terms shall mean:

Moreover, Section 5 of Act 3753 (the Civil Register Law) provides:

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.

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)

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Under the Civil Register Law, a birth certificate is a historical record of the facts as they existed at the time of birth.29 Thus, 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

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.

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."33 Female 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-to-female 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 Code40 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

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.

Costs against petitioner.

SO ORDERED.

Puno, C.J., Chairperson, Sandoval-Gutierrez, Azcuna, Garcia, JJ., concur.

Footnotes 1 Petitioner went for his elementary and high school, as well as his Bachelor of
Footnotes
1
Petitioner went for his elementary and high school, as well as his
Bachelor of Science in Statistics and Master of Arts, in the University of the
Philippines. He took up Population Studies Program, Master of Arts in
Sociology and Doctor of Philosophy in Sociology at the University of Hawaii,
in Manoa, Hawaii, U.S.A. Rollo, p. 48.
2
This consisted of "penectomy [surgical removal of penis] bilateral
oschiectomy [or orchiectomy which is the surgical excision of the testes]
penile skin inversion vaginoplasty [plastic surgery of the vagina] clitoral
hood reconstruction and augmentation mammoplasty [surgical
enhancement of the size and shape of the breasts]." Id.
3
On January 23, 2003, January 30, 2003 and February 6, 2003.
4
Penned by Judge Felixberto T. Olalia, Jr. Rollo, pp. 51-53.
5
Id., pp. 52-53 (citations omitted).
6
Docketed as CA-G.R. SP No. 78824.
7
Special Sixth Division.
8
Penned
by
Associate
Justice
Arcangelita
M.
Romilla-Lontok
with
Associate Justices Marina L. Buzon and Aurora Santiago-Lagman
concurring. Rollo, pp. 25-33.
9
Resolution dated September 14, 2006, id., pp. 45-46.
10
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 a
Judicial Order, Amending for the Purpose Articles 376 and 412 of the Civil
Code of the Philippines.
11
Wang v. Cebu City Civil Registrar, G.R. No. 159966, 30 March 2005,
454 SCRA 155.
12
Id.
13
K v. Health Division, Department of Human Resources, 277 Or. 371, 560
P.2d 1070 (1977).
14
Under Section
2
(6)
of
RA 9048,
"first name"
refers
to
a
name or
nickname given to a person which may consist of one or more names in
addition to the middle names and last names. Thus, the term "first name"
will be used here to refer both to first name and nickname.
15
The last paragraph of Section 7 of RA 9048 provides:
SECTION 7. Duties and Powers of the Civil Registrar General. – xxx xxx
xxx
Where the petition is denied by the city or municipal civil registrar or the
consul general, the petitioner may either appeal the decision to the civil
registrar general or file the appropriate petition with the proper court.
16
SECTION 3. Who May File the Petition and Where. – Any person having
direct and personal interest in the correction of a clerical or typographical
error in an entry and/or change of first name or nickname in the civil register
may file, in person, a verified petition with the local civil registry office of the
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city or municipality where the record being sought to be corrected or changed is kept.

In case the petitioner has already migrated to another place in the country and it would not be practical for such party, in terms of transportation expenses, time and effort to appear in person before the local civil registrar keeping the documents to be corrected or changed, the petition may be filed, in person, with the local civil registrar of the place where the interested party is presently residing or domiciled. The two (2) local civil registrars concerned will then communicate to facilitate the processing of the petition.

Citizens of the Philippines who are presently residing or domiciled in foreign countries may file their petition, in person, with the nearest Philippine Consulates.

The petitions filed with the city or municipal civil registrar or the consul general shall be processed in accordance with this Act and its implementing rules and regulations.

All petitions for the clerical or typographical errors and/or change of first names or nicknames may be availed of only once.

  • 17 SECTION 5. Form and Contents of the Petition. The petition shall be in

the form of an affidavit, subscribed and sworn to before any person authorized by the law to administer oaths. The affidavit shall set forth facts necessary to establish the merits of the petition and shall show affirmatively that the petitioner is competent to testify to the matters stated. The petitioner shall state the particular erroneous entry or entries, which are sought to be corrected and/or the change sought to be made.

The petition shall be supported with the following documents:

(1) A certified true machine copy of the certificate or of the page of the

registry book containing the entry or entries sought to changed;

be corrected or

(2) At least two (2) public or private documents showing the correct entry or entries upon which the correction or change shall be based; and

(3) Other documents which the petitioner or the city or municipal civil registrar or the consul general may consider relevant and necessary for the approval of the petition.

In case of change of first name or nickname, the petition shall likewise be supported with the documents mentioned in the immediately preceding paragraph. In addition, the petition shall be published at least once a week for two (2) consecutive weeks in a newspaper of general circulation. Furthermore, the petitioner shall submit a certification from the appropriate law enforcement agencies that he has no pending case or no criminal record.

  • 18 Republic v. Court of Appeals, G.R. No. 97906, 21 May 1992, 209 SCRA

189.

  • 19 Supra note 11.

  • 20 Id.

  • 21 In re Ladrach, 32 Ohio Misc.2d 6, 513 N.E.2d 828 (1987).

  • 22 Lee v. Court of Appeals, 419 Phil. 392 (2001).

  • 23 Id.

  • 24 Co v. Civil Register of Manila, G.R. No. 138496, 23 February 2004, 423

SCRA 420.

  • 25 Id.

  • 26 Id.

  • 27 Beduya v. Republic of the Philippines, 120 Phil. 114 (1964).

  • 28 Salonga, Jovito, Private International Law, 1995 Edition, Rex Bookstore,

p. 238.

  • 29 This, of course, should be taken in conjunction with Articles 407 and 412

of the Civil Code which authorizes the recording of acts, events and judicial decrees or the correction or change of errors including those that occur after birth. Nonetheless, in such cases, the entries in the certificates of birth are not be corrected or changed. The decision of the court granting the petition shall be annotated in the certificates of birth and shall form part of

 

the civil

register

in

the

Office

of

the

Local Civil Registrar. (Co v. Civil

Register of Manila, supra note 24)

 

30

The error pertains to one where the birth attendant writes "male" or

 

"female" but the genitals of the child are that of the opposite sex.

31

Moreover, petitioner’s female anatomy is all man-made. The body that

he inhabits is a male body in all aspects other than what the physicians

have supplied.

 

32

Black’s Law Dictionary, 8th edition (2004), p.1406.

 

33

Words and Phrases, volume 39, Permanent Edition, p. 106.

34

In re Application for Marriage License for Nash, 2003-Ohio-7221 (No.

2002-T-0149, slip op., Not Reported in N.E.2d, 2003 WL 23097095 (Ohio

App. 11 Dist., December 31, 2003), citing Webster’s II New College Dictionary (1999).

35

Id.

36

Standard Oil Co. v. United States, 221 U.S. 1 (1911), 31 S.Ct. 502, 55

 

L.Ed. 619.

 

37

Article 1, Family Code.

 

38

Article 2(1), Id.

 

39

These are Articles 130 to 138 of the Labor Code which include nightwork

 

prohibition, facilities for women, prohibition on discrimination and stipulation

against marriage, among others.

 

40

These include Article 333 on adultery, Articles 337 to 339 on qualified

 

seduction, simple seduction and acts of lasciviousness with the consent of the offended party and Articles 342 and 343 on forcible and consented abduction, among others.

41

Section 3(jj)(4).

 
 
   

Republic v Cagandahan

 

G.R. No. xgrno

 

September xdate, 2008

 

xcite Republic of the Philippines SUPREME COURT Manila

SECOND DIVISION

REPUBLIC OF THE PHILIPPINES,

Petitioner,

- versus -

JENNIFER B. CAGANDAHAN,

Respondent.

G.R. No. 166676

Present:

Quisumbing, J., Chairperson,

Carpio Morales, Tinga, VELASCO, JR., and BRION, JJ. Promulgated: September 12, 2008 x- - - -
Carpio Morales,
Tinga,
VELASCO, JR., and
BRION, JJ.
Promulgated:
September 12, 2008
x-
- -
-
-
- - -
- -
- -
- -
-
-
-
- - -
- - -
- -
- - -
-
-
-
- - -
- - -
- -
-
-
-
- - -
-
-
- - -
-x
DECISION
QUISUMBING, J.:
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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 Cagandahan’s birth certificate: (1) the name "Jennifer

Cagandahan" changed to "Jeff Cagandahan" and (2) gender from "female" to "male."

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

RESPONDENT’S MEDICAL CONDITION, i.e., CONGENITAL ADRENAL

The facts are as follows.

HYPERPLASIA DOES NOT MAKE HER A "MALE."4

On December 11, 2003, respondent Jennifer Cagandahan filed a Petition for Correction of Entries in Birth Certificate2 before the RTC, Branch 33 of Siniloan, Laguna.

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

The OSG contends that the petition below is fatally defective for non-

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

known as CAH, and her name from "Jennifer" to "Jeff," under Rules 103 and 108 of the Rules of Court.

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,

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

respondent’s petition before the court a quo did not implead the local civil registrar.5 The OSG further contends respondent’s petition is fatally

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.

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 respondent’s claimed medical condition known as CAH does not make her a male.7

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.

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

Rules 103 and 108 of the Rules of Court provide:

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 respondent’s 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

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

she has two sex organs female and male. He testified that this condition is very rare, that respondent’s uterus is not fully developed because of lack of female hormones, and that she has no monthly period. He further testified

Rule 103

that respondent’s condition is permanent and recommended the change of

CHANGE OF NAME

gender because respondent has made up her mind, adjusted to her chosen role as male, and the gender change would be advantageous to her.

Section 1. Venue. A person desiring to change his name shall present the

The RTC granted respondent’s petition in a Decision dated January 12,

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].

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 petitioner’s 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.

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;

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:

  • (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

Sec. 4. Hearing. Any interested person may appear at the hearing and

a)

By

changing

the

name

from

Jennifer Cagandahan to JEFF

fix a date and place for the hearing thereof, and shall direct that a copy of

CAGANDAHAN; and

 

the order be published before the hearing at least once a week for three (3)

b) By changing the gender from female to MALE.

 

successive weeks in some newspaper of general circulation published in the province, as the court shall deem best. The date set for the hearing

It is likewise ordered that petitioner’s school records, voter’s registry, baptismal certificate, and other pertinent records are hereby amended to conform with the foregoing corrected data.

SO ORDERED.[3]

shall not be within thirty (30) days prior to an election nor within four (4) months after the last publication of the notice.

oppose the petition. The Solicitor General or the proper provincial or city fiscal shall appear on behalf of the Government of the Republic.

Thus, this petition by the Office of the Solicitor General (OSG) seeking a reversal of the abovementioned ruling.

The issues raised by petitioner are:

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.

THE

TRIAL

COURT

ERRED

IN

GRANTING

THE

PETITION

CONSIDERING THAT:

 

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

I.

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where the court issuing the same is situated, who shall forthwith enter the same in the civil register.

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

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.

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.

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

respondent’s 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 person’s 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:

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-man’s 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 be other than female, then a change in the

subject’s birth certificate entry is in order.

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

Biologically, nature endowed respondent with a mixed (neither consistently and categorically female nor consistently and categorically male) composition. Respondent has female (XX) chromosomes. However,

respondent’s body system naturally produces high levels of male hormones

(androgen). As a result, respondent has ambiguous genitalia and the phenotypic features of a male.

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Ultimately, we are of the view that where the person is biologically or naturally intersex the determining factor in his gender classification would

I

attest that the conclusions in the above Decision had been reached in

be what the individual, like respondent, having reached the age of majority,

consultation before the case was assigned to the writer of the opinion of the

with good reason thinks of his/her sex. Respondent here thinks of himself

Court’s Division.

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

LEONARDO A. QUISUMBING

persons makes the gender classification at birth inconclusive. It is at maturity that the gender of such persons, like respondent, is fixed.

Associate Justice

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

Chairperson

accordingly, he has already ordered his life to that of a male. Respondent

C

E R T I F I C A T I O N

could have undergone treatment and taken steps, like taking lifelong medication,[26] to force his body into the categorical mold of a female but

Pursuant to Section 13, Article VIII of the Constitution, and the Division

he did not. He chose not to do so. Nature has instead taken its due course

Chairperson’s Attestation, I certify that the conclusions in the above

in respondent’s development to reveal more fully his male characteristics.

Decision had been reached in consultation before the case was assigned to

In the absence of a law on the matter, the Court will not dictate on

respondent concerning a matter so innately private as one’s 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 respondent’s 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 respondent’s 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 respondent’s 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 court’s grant of respondent’s change of name from

Jennifer to Jeff implies a change of a feminine name to a masculine name.

Considering the consequence that respondent’s change of name merely recognizes his preferred gender, we find merit in respondent’s change of

name. Such a change will conform with the change of the entry in his birth certificate from female to male.

WHEREFORE, the Republic’s 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.

LEONARDO A. QUISUMBING

Associate Justice

WE CONCUR:

CONCHITA CARPIO MORALES

Associate Justice

DANTE O. TINGA

Associate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice

ARTURO D. BRION

Associate Justice

the writer of the opinion of the Court’s Division.

REYNATO S. PUNO

Chief Justice

  • 15 SEC. 6. Construction.- These Rules shall be liberally construed in order

to promote their objective of securing a just, speedy and inexpensive disposition of every action and proceeding.

  • 16 Art. 376. No person can change his name or surname without judicial

authority.

  • 17 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 Registrar Without Need of a

Judicial Order, Amending for this Purpose Articles 376 and 412 of the Civil Code of the Philippines. Approved, March 22, 2001.

  • 18 Silverio v. Republic of the Philippines, G.R. No. 174689, October 19,

2007, 537 SCRA 373, 388.

  • 21 (1) 5-alpha reductase deficiency; (2) androgen insensitivity syndrome;

(3) aphallia; (4) clitoromegaly; (5) congenital adrenal hyperplasia; (6) gonadal dysgenesis (partial & complete); (7) hypospadias; (8) Kallmann syndrome; (9) Klinefelter syndrome; (10) micropenis; (11) mosaicism involving sex chromosomes; (12) MRKH (mullerian agenesis; vaginal agenesis; congenital absence of vagina); (13) ovo-testes (formerly called "true hermaphroditism"); (14) partial androgen insensitivity syndrome; (15) progestin induced virilization; (16) Swyer syndrome; (17) Turner syndrome. [Intersexuality <http://en.wikipedia.org/wiki/Intersexual> (visited August 15,

2008).]

  • 26 The goal of treatment is to return hormone levels to normal. This is done

by taking a form of cortisol (dexamethasone), fludrocortisone, or hydrocortisone) every day. Additional doses of medicine are needed during

times of stress, such as severe illness or surgery.

  • x x x x

Parents of children with congenital adrenal hyperplasia should be aware of the side effects of steroid therapy. They should report signs of infection and stress to their health care provider because increases in medication may be required. In additional, steroid medications cannot be stopped suddenly, or adrenal insufficiency will result.

  • x x x x

The outcome is usually associated with good health, but short stature may result even with treatment. Males have normal fertility. Females may have a smaller opening of the vagina and lower fertility. Medication to treat this disorder must be continued for life. (Congenital Adrenal Hyperplasia <http://www.nlm.nih.gov/medlineplus/encyclopedia.html>.)

  • 27 The word "incompetent" includes persons suffering the penalty of civil

interdiction or who are hospitalized lepers, prodigals, deaf and dumb who are unable to read and write, those who are of unsound mind, even though

they have lucid intervals, and persons not being of unsound mind, but by reason of age, disease, weak mind, and other similar causes, cannot, without outside aid, take care of themselves and manage their property, becoming thereby an easy prey for deceit and exploitation. (See Sec. 2 of Rule 92 of the Rules of Court)

A T T E S T A T I O N

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Corpuz v Sto Tomas
Corpuz v Sto Tomas

G.R. No. 186571 August 11, 2010

GERBERT R. CORPUZ, Petitioner, vs. DAISYLYN TIROL STO. TOMAS and The SOLICITOR GENERAL, Respondents.

applies as well to the benefit of the alien spouse. He claims that the RTC ruling unduly stretched the doctrine in Orbecido by limiting the standing to file the petition only to the Filipino spouse an interpretation he claims to be contrary to the essence of the second paragraph of Article 26 of the Family Code. He considers himself as a proper party, vested with sufficient legal interest, to institute the case, as there is a possibility that he might be prosecuted for bigamy if he marries his Filipina fiancée in the Philippines since two marriage certificates, involving him, would be on file with the Civil Registry Office. The Office of the Solicitor General and Daisylyn, in their

D E C I S I O N

respective Comments,14 both support Gerbert’s position.

BRION, J.:

Essentially, the petition raises the issue of whether the second paragraph of

THE COURT’S RULING

Before the Court is a direct appeal from the decision1 of the Regional Trial Court (RTC) of Laoag City, Branch 11, elevated via a petition for review on certiorari2 under Rule 45 of the Rules of Court (present petition).

Article 26 of the Family Code extends to aliens the right to petition a court of this jurisdiction for the recognition of a foreign divorce decree.

Petitioner Gerbert R. Corpuz was a former Filipino citizen who acquired Canadian citizenship through naturalization on November 29, 2000.3 On January 18, 2005, Gerbert married respondent Daisylyn T. Sto. Tomas, a

The Superior Court of Justice, Windsor, Ontario, Canada granted Gerbert’s

The alien spouse can claim no right under the second paragraph of Article 26 of the Family Code as the substantive right it establishes is in favor of the Filipino spouse

Filipina, in Pasig City.4 Due to work and other professional commitments, Gerbert left for Canada soon after the wedding. He returned to the Philippines sometime in April 2005 to surprise Daisylyn, but was shocked to

The resolution of the issue requires a review of the legislative history and intent behind the second paragraph of Article 26 of the Family Code.

discover that his wife was having an affair with another man. Hurt and disappointed, Gerbert returned to Canada and filed a petition for divorce.

The Family Code recognizes only two types of defective marriages void15 and voidable16 marriages. In both cases, the basis for the judicial

Recognizing the reality that divorce is a possibility in marriages between a

petition for divorce on December 8, 2005. The divorce decree took effect a

declaration of absolute nullity or annulment of the marriage exists before or

month later, on January 8, 2006.5

at the time of the marriage. Divorce, on the other hand, contemplates the

Two years after the divorce, Gerbert has moved on and has found another Filipina to love. Desirous of marrying his new Filipina fiancée in the Philippines, Gerbert went to the Pasig City Civil Registry Office and registered the Canadian divorce decree on his and Daisylyn’s marriage certificate. Despite the registration of the divorce decree, an official of the National Statistics Office (NSO) informed Gerbert that the marriage between him and Daisylyn still subsists under Philippine law; to be

1982.6

dissolution of the lawful union for cause arising after the marriage.17 Our family laws do not recognize absolute divorce between Filipino citizens.18

Filipino and an alien, President Corazon C. Aquino, in the exercise of her legislative powers under the Freedom Constitution,19 enacted Executive Order No. (EO) 227, amending Article 26 of the Family Code to its present wording, as follows:

enforceable, the foreign divorce decree must first be judicially recognized by a competent Philippine court, pursuant to NSO Circular No. 4, series of

Art. 26. All marriages solemnized outside the Philippines, in accordance with the laws in force in the country where they were solemnized, and valid

Where a marriage between a Filipino citizen and a foreigner is validly

Accordingly, Gerbert filed a petition for judicial recognition of foreign divorce and/or declaration of marriage as dissolved (petition) with the RTC. Although summoned, Daisylyn did not file any responsive pleading but

submitted instead a notarized letter/manifestation to the trial court. She offered no opposition to Gerbert’s petition and, in fact, alleged her desire to file a similar case herself but was prevented by financial and personal circumstances. She, thus, requested that she be considered as a party-in-

there as such, shall also be valid in this country, except those prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and 38.

celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall likewise have capacity to remarry under Philippine law.

interest with a similar prayer to Gerbert’s.

Through the second paragraph of Article 26 of the Family Code, EO 227

refused to acknowledge the alien spouse’s assertion of marital rights after a

In its October 30, 2008 decision,7 the RTC denied Gerbert’s petition. The RTC concluded that Gerbert was not the proper party to institute the action

effectively incorporated into the law this Court’s holding in Van Dorn v. Romillo, Jr.20 and Pilapil v. Ibay-Somera.21 In both cases, the Court

for judicial recognition of the foreign divorce decree as he is a naturalized Canadian citizen. It ruled that only the Filipino spouse can avail of the remedy, under the second paragraph of Article 26 of the Family Code,8 in order for him or her to be able to remarry under Philippine law.9 Article 26 of the Family Code reads:

foreign court’s divorce decree between the alien and the Filipino. The Court, thus, recognized that the foreign divorce had already severed the marital bond between the spouses. The Court reasoned in Van Dorn v. Romillo that:

To maintain x x x that, under our laws, [the Filipino spouse] has to be considered still married to [the alien spouse] and still subject to a wife's obligations x x x cannot be just. [The Filipino spouse] should not be obliged to live together with, observe respect and fidelity, and render support to [the alien spouse]. The latter should not continue to be one of her heirs with possible rights to conjugal property. She should not be discriminated against in her own country if the ends of justice are to be served.22

As the RTC correctly stated, the provision was included in the law "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."23 The legislative intent is for the benefit of the Filipino spouse, by clarifying his or her marital status, settling the doubts created by the divorce decree. Essentially, the second paragraph of Article 26 of the Family Code provided the Filipino spouse a substantive right to have his or her marriage to the alien spouse considered as dissolved, capacitating him or her to remarry.24 Without the second paragraph of Article 26 of the Family Code, the judicial recognition of the foreign decree of divorce, whether in a proceeding instituted precisely for that purpose or as a related issue in another proceeding, would be of no significance to the Filipino spouse since our laws do not recognize divorce as a mode of severing the marital bond;25 Article 17 of the Civil Code provides that the policy against absolute divorces cannot be subverted by judgments promulgated in a foreign country. The inclusion of the second paragraph in Article 26 of the Family Code provides the direct exception to this rule and serves as basis for recognizing the dissolution of the marriage between the Filipino spouse and his or her alien spouse.

Art. 26. All marriages solemnized outside the Philippines, in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and 38.

Where 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 likewise have capacity to remarry under Philippine law.

This conclusion, the RTC stated, is consistent with the legislative intent behind the enactment of the second paragraph of Article 26 of the Family Code, as determined by the Court in Republic v. Orbecido III;10 the provision was enacted 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."11

THE PETITION

From the RTC’s ruling,12 Gerbert filed the present petition.13

Gerbert asserts that his petition before the RTC is essentially for declaratory relief, similar to that filed in Orbecido; he, thus, similarly asks for a determination of his rights under the second paragraph of Article 26 of the Family Code. Taking into account the rationale behind the second paragraph of Article 26 of the Family Code, he contends that the provision

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Additionally, an action based on the second paragraph of Article 26 of the Family Code is not limited to the recognition of the foreign divorce decree. If the court finds that the decree capacitated the alien spouse to remarry, the courts can declare that the Filipino spouse is likewise capacitated to contract another marriage. No court in this jurisdiction, however, can make a similar declaration for the alien spouse (other than that already established by the decree), whose status and legal capacity are generally governed by his national law.26

Given the rationale and intent behind the enactment, and the purpose of the second paragraph of Article 26 of the Family Code, the RTC was correct in limiting the applicability of the provision for the benefit of the Filipino spouse. In other words, only the Filipino spouse can invoke the second paragraph of Article 26 of the Family Code; the alien spouse can claim no right under this provision.

The foreign divorce decree is presumptive evidence of a right that clothes the party with legal interest to petition for its recognition in this jurisdiction

We qualify our above conclusion i.e., that the second paragraph of Article 26 of the Family Code bestows no rights in favor of aliens with the complementary statement that this conclusion is not sufficient basis to

dismiss Gerbert’s petition before the RTC. In other words, the unavailability

of the second paragraph of Article 26 of the Family Code to aliens does not necessarily strip Gerbert of legal interest to petition the RTC for the recognition of his foreign divorce decree. The foreign divorce decree itself, after its authenticity and conformity with the alien’s national law have been duly proven according to our rules of evidence, serves as a presumptive evidence of right in favor of Gerbert, pursuant to Section 48, Rule 39 of the Rules of Court which provides for the effect of foreign judgments. This Section states:

SEC. 48. Effect of foreign judgments or final orders.The effect of a judgment or final order of a tribunal of a foreign country, having jurisdiction to render the judgment or final order is as follows:

  • (a) In case of a judgment or final order upon a specific thing, the judgment

or final order is conclusive upon the title of the thing; and

  • (b) In case of a judgment or final order against a person, the judgment or

final order is presumptive evidence of a right as between the parties and

their successors in interest by a subsequent title.

case to the RTC to determine whether the divorce decree is consistent with the Canadian divorce law.

We deem it more appropriate to take this latter course of action, given the

Article 26 interests that will be served and the Filipina wife’s (Daisylyn’s)

obvious conformity with the petition. A remand, at the same time, will allow

other interested parties to oppose the foreign judgment and overcome a

petitioner’s presumptive evidence of a right by proving want of jurisdiction,

want of notice to a party, collusion, fraud, or clear mistake of law or fact.

Needless to state, every precaution must be taken to ensure conformity with our laws before a recognition is made, as the foreign judgment, once recognized, shall have the effect of res judicata32 between the parties, as provided in Section 48, Rule 39 of the Rules of Court.33

In fact, more than the principle of comity that is served by the practice of reciprocal recognition of foreign judgments between nations, the res judicata effect of the foreign judgments of divorce serves as the deeper basis for extending judicial recognition and for considering the alien spouse bound by its terms. This same effect, as discussed above, will not obtain for the Filipino spouse were it not for the substantive rule that the second paragraph of Article 26 of the Family Code provides.

Considerations beyond the recognition of the foreign divorce decree

As a matter of "housekeeping" concern, we note that the Pasig City Civil Registry Office has already recorded the divorce decree on Gerbert and Daisylyn’s marriage certificate based on the mere presentation of the decree.34 We consider the recording to be legally improper; hence, the need to draw attention of the bench and the bar to what had been done.

Article 407 of the Civil Code states that "[a]cts, events and judicial decrees concerning the civil status of persons shall be recorded in the civil register."

The law requires the entry in the civil registry of judicial decrees that

produce legal consequences touching upon a person’s legal capacity and

status, i.e., those affecting "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."35

A judgment of divorce is a judicial decree, although a foreign one, affecting a person’s legal capacity and status that must be recorded. In fact, Act No. 3753 or the Law on Registry of Civil Status specifically requires the registration of divorce decrees in the civil registry:

In either case, 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

Sec. 1. Civil Register. A civil register is established for recording the civil status of persons, in which shall be entered:

mistake of law or fact.

(a)

births;

To our mind, direct involvement or being the subject of the foreign judgment is sufficient to clothe a party with the requisite interest to institute an action

The starting point in any recognition of a foreign divorce judgment is the

(b)

deaths;

before our courts for the recognition of the foreign judgment. In a divorce situation, we have declared, no less, that the divorce obtained by an alien

(c)

marriages;

abroad may be recognized in the Philippines, provided the divorce is valid

(d)

annulments of marriages;

according to his or her national law.27

(e)

divorces;

acknowledgment that our courts do not take judicial notice of foreign

(f)

legitimations;

judgments and laws. Justice Herrera explained that, as a rule, "no sovereign is bound to give effect within its dominion to a judgment rendered by a tribunal of another country."28 This means that the foreign judgment

(g)

adoptions;

and its authenticity must be proven as facts under our rules on evidence,

(h)

acknowledgment of natural children;

together with the alien’s applicable national law to show the effect of the

judgment on the alien himself or herself.29 The recognition may be made in an action instituted specifically for the purpose or in another action where a

(i)

naturalization; and

party invokes the foreign decree as an integral aspect of his claim or

(j)

changes of name.

defense.

x x x x

In Gerbert’s case, since both the foreign divorce decree and the national

law of the alien, recognizing his or her capacity to obtain a divorce, purport to be official acts of a sovereign authority, Section 24, Rule 132 of the Rules

of Court comes into play. This Section requires proof, either by (1) official publications or (2) copies attested by the officer having legal custody of the documents. If the copies of official records are not kept in the Philippines, these must be (a) accompanied by a certificate issued by the proper diplomatic or consular officer in the Philippine foreign service stationed in the foreign country in which the record is kept and (b) authenticated by the seal of his office.

Sec. 4. Civil Register Books. The local registrars shall keep and preserve in their offices the following books, in which they shall, respectively make the proper entries concerning the civil status of persons:

(1) Birth and death register;

(2) Marriage register, in which shall be entered not only the marriages solemnized but also divorces and dissolved marriages.

(3)

Legitimation,

acknowledgment,

adoption,

change

of

name and

naturalization register.

 

But

while

the

law requires

the entry

of the divorce decree

in

the civil

registry, the law and the submission of the decree by themselves do not

The records show that Gerbert attached to his petition a copy of the divorce decree, as well as the required certificates proving its authenticity,30 but failed to include a copy of the Canadian law on divorce.31 Under this situation, we can, at this point, simply dismiss the petition for insufficiency of supporting evidence, unless we deem it more appropriate to remand the

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ipso facto authorize the decree’s registration. The law should be read in

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Persons and Family Relations Jurisprudence/full text Family Code Art 407-413 Civil Register

relation with the requirement of a judicial recognition of the foreign judgment before it can be given res judicata effect. In the context of the present case, no judicial order as yet exists recognizing the foreign divorce decree. Thus, the Pasig City Civil Registry Office acted totally out of turn and without authority of law when it annotated the Canadian divorce decree on Gerbert

and Daisylyn’s marriage certificate, on the strength alone of the foreign

decree presented by Gerbert.

Before us is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as amended, assailing the September 4, 2012 Decision2 and October 16, 2012 Order3 of the Regional Trial Court (RTC), Branch 43, of Manila in Civil Case No. 11-126203. The RTC denied the petition for declaration of nullity of the marriage of petitioner Yasuo Iwasawa with private respondent Felisa Custodio Gangan due to insufficient evidence.

Evidently, the Pasig City Civil Registry Office was aware of the requirement of a court recognition, as it cited NSO Circular No. 4, series of 1982,36 and

effect.1avvphi1

The antecedents follow:

Department of Justice Opinion No. 181, series of 198237 both of which required a final order from a competent Philippine court before a foreign judgment, dissolving a marriage, can be registered in the civil registry, but it, nonetheless, allowed the registration of the decree. For being contrary to law, the registration of the foreign divorce decree without the requisite judicial recognition is patently void and cannot produce any legal

Petitioner, a Japanese national, met private respondent sometime in 2002 in one of his visits to the Philippines. Private respondent introduced herself as "single" and "has never married before." Since then, the two became close to each other. Later that year, petitioner came back to the Philippines and married private respondent on November 28, 2002 in Pasay City. After the wedding, the couple resided in Japan.4

Another point we wish to draw attention to is that the recognition that the

In July 2009, petitioner noticed his wife become depressed. Suspecting that

Petitioner sought to confirm the truth of his wife’s confession and

RTC may extend to the Canadian divorce decree does

not,

by itself,

something might have happened in the Philippines, he confronted his wife

authorize

the cancellation of

the

entry

in

the civil

registry.

A petition for

about it. To his shock, private respondent confessed to him that she

recognition of a foreign judgment is not the proper proceeding, contemplated under the Rules of Court, for the cancellation of entries in the civil registry.

received news that her previous husband passed away.5

Article 412 of the Civil Code declares that "no entry in a civil register shall be changed or corrected, without judicial order." The Rules of Court supplements Article 412 of the Civil Code by specifically providing for a special remedial proceeding by which entries in the civil registry may be judicially cancelled or corrected. Rule 108 of the Rules of Court sets in detail the jurisdictional and procedural requirements that must be complied with before a judgment, authorizing the cancellation or correction, may be annotated in the civil registry. It also requires, among others, that the verified petition must be filed with the RTC of the province where the corresponding civil registry is located;38 that the civil registrar and all persons who have or claim any interest must be made parties to the proceedings;39 and that the time and place for hearing must be published in a newspaper of general circulation.40 As these basic jurisdictional requirements have not been met in the present case, we cannot consider the petition Gerbert filed with the RTC as one filed under Rule 108 of the Rules of Court.

We hasten to point out, however, that this ruling should not be construed as requiring two separate proceedings for the registration of a foreign divorce decree in the civil registry one for recognition of the foreign decree and another specifically for cancellation of the entry under Rule 108 of the Rules of Court. The 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. Moreover, Rule 108 of the Rules of Court can serve as the appropriate adversarial proceeding41 by which the applicability of the foreign judgment can be measured and tested in terms of jurisdictional infirmities, want of notice to the party, collusion, fraud, or clear mistake of law or fact.

WHEREFORE, we GRANT the petition for review on certiorari, and REVERSE the October 30, 2008 decision of the Regional Trial Court of Laoag City, Branch 11, as well as its February 17, 2009 order. We order the REMAND of the case to the trial court for further proceedings in accordance with our ruling above. Let a copy of this Decision be furnished the Civil Registrar General. No costs.

SO ORDERED.

discovered that indeed, she was married to one Raymond Maglonzo Arambulo and that their marriage took place on June 20, 1994.6 This prompted petitioner to file a petition7 for the declaration of his marriage to private respondent as null and void on the ground that their marriage is a bigamous one, based on Article 35(4) in relation to Article 41 of the Family Code of the Philippines.

During trial, aside from his testimony, petitioner also offered the following pieces of documentary evidence issued by the National Statistics Office (NSO):

(1)

Certificate of Marriage8 between petitioner and private respondent marked as Exhibit "A" to prove the fact of marriage between the parties on November 28, 2002;

(2)

Certificate of Marriage9 between private respondent and Raymond Maglonzo Arambulo marked as Exhibit "B" to prove the fact of marriage between the parties on June 20, 1994;

(3)

Certificate of Death10 of Raymond Maglonzo Arambulo marked as Exhibits "C" and "C-1" to prove the fact of the latter’s death on July 14, 2009; and

(4)

Certification11 from the NSO to the effect that there are two entries of marriage recorded by the office pertaining to private respondent marked as Exhibit "D" to prove that private respondent in fact contracted two marriages, the first one was to a Raymond Maglonzo Arambulo on June 20, 1994, and second, to petitioner on November 28, 2002.

The prosecutor appearing on behalf of the Office of the Solicitor General (OSG) admitted the authenticity and due execution of the above documentary exhibits during pre-trial.12

When the entry sought to be corrected is substantial (i.e., the civil status of a person), a Rule 108 proceeding is deemed adversarial in nature. See Co v. Civil Register of Manila, G.R. No. 138496, February 23, 2004, 423 SCRA 420, 430.

Iwasawa v Gangan
Iwasawa v Gangan

G.R. No. 204169 September 11, 2013

YASUO IWASAWA, PETITIONER, vs. FELISA CUSTODIO GANGAN1 (A.K.A FELISA GANGAN ARAMBULO, AND FELISA GANGAN IWASAWA) AND THE LOCAL CIVIL REGISTRAR OF PASAY CITY, RESPONDENTS.

On September 4, 2012, the RTC rendered the assailed decision. It ruled

that there was insufficient evidence to prove private respondent’s prior

existing valid marriage to another man. It held that while petitioner offered

the certificate of marriage of private respondent to Arambulo, it was only

petitioner who testified about said marriage. The RTC ruled that petitioner’s

testimony is unreliable because he has no personal knowledge of private

respondent’s prior marriage nor of Arambulo’s death which makes him a complete stranger to the marriage certificate between private respondent

and Arambulo and the latter’s death certificate. It further ruled that

petitioner’s testimony about the NSO certification is likewise unreliable since

he is a stranger to the preparation of said document.

Petitioner filed a motion for reconsideration, but the same was denied by the RTC in an Order dated October 16, 2012.

D E C I S I O N

VILLARAMA, JR., J.:

Hence this petition raising the sole legal issue of whether the testimony of the NSO records custodian certifying the authenticity and due execution of the public documents issued by said office was necessary before they could be accorded evidentiary weight.

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Persons and Family Relations Jurisprudence/full text Family Code Art 407-413 Civil Register

Petitioner argues that the documentary evidence he presented are public documents which are considered self-authenticating and thus it was unnecessary to call the NSO Records Custodian as witness. He cites Article 410 of the Civil Code which provides that 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 stated therein. Moreover, the trial prosecutor himself also admitted the authenticity of said documents.

The Local Civil Registrar of Pasay City and the National Statistics Office are hereby ORDERED to make proper entries into the records of the abovementioned parties in accordance with this Decision.

No pronouncement as to costs.

SO ORDERED.

Republic v Olaybar
Republic v Olaybar

The OSG, in its Comment,13 submits that the findings of the RTC are not in accord with law and established jurisprudence. It contends that both

In her letter14 dated March 19, 2013 to this Court, private respondent

We grant the petition.

G.R. No. 189538 February 10, 2014

Republic Act No. 3753, otherwise known as the Law on Registry of Civil Status, and the Civil Code elaborated on the character of documents arising from records and entries made by the civil registrar and categorically declared them as public documents. Being public documents, said

REPUBLIC OF THE PHILIPPINES, Petitioner, vs. MERLINDA L. OLAYBAR, Respondent.

documents are admissible in evidence even without further proof of their due execution and genuineness and consequently, there was no need for

D E C I S I O N

the court to require petitioner to present the records custodian or officer from the NSO to testify on them. The OSG further contends that public

PERALTA, J.:

documents have probative value since they are prima facie evidence of the facts stated therein as provided in the above-quoted provision of the Civil Code. Thus, the OSG submits that the public documents presented by petitioner, considered together, completely establish the facts in issue.

indicated that she is not against her husband’s petition to have their marriage declared null and void. She likewise admitted therein that she contracted marriage with Arambulo on June 20, 1994 and contracted a second marriage with petitioner on November 28, 2002. She further

Assailed in this petition for review on certiorari under Rule 45 of the Rules of Court are the Regional Trial Court1 (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:

admitted that it was due to poverty and joblessness that she married petitioner without telling the latter that she was previously married. Private respondent also confirmed that it was when she found out that Arambulo passed away on July 14, 2009 that she had the guts to confess to petitioner about her previous marriage. Thereafter, she and petitioner have separated.

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

There is no question that the documentary evidence submitted by petitioner are all public documents.1âwphi1 As provided in the Civil Code:

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

ART. 410. 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.

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.

As public documents, they are admissible in evidence even without further proof of their due execution and genuineness.15 Thus, the RTC erred when it disregarded said documents on the sole ground that the petitioner did not present the records custodian of the NSO who issued them to testify on their authenticity and due execution since proof of authenticity and due execution was not anymore necessary. Moreover, not only are said documents admissible, they deserve to be given evidentiary weight because they constitute prima facie evidence of the facts stated therein. And in the instant case, the facts stated therein remain unrebutted since neither the private respondent nor the public prosecutor presented evidence to the contrary.

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

On May 5, 2009, the RTC rendered the assailed Decision, the dispositive

This Court has consistently held that a judicial declaration of nullity is required before a valid subsequent marriage can be contracted; or else, what transpires is a bigamous marriage,16 which is void from the beginning as provided in Article 35(4) of the Family Code of the Philippines. And this is what transpired in the instant case.

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

portion of which reads:

As correctly pointed out by the OSG, the documentary exhibits taken together concretely establish the nullity of the marriage of petitioner to private respondent on the ground that their marriage is bigamous. The exhibits directly prove the following facts: (1) that private respondent

WHEREFORE, the petition for review on certiorari is GRANTED. The

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.

married Arambulo on June 20, 1994 in the City of Manila; (2) that private respondent contracted a second marriage this time with petitioner on

SO ORDERED.9

November 28, 2002 in Pasay City; (3) that there was no judicial declaration of nullity of the marriage of private respondent with Arambulo at the time

Finding that the signature appearing in the subject marriage contract was

she married petitioner; (3) that Arambulo died on July 14, 2009 and that it

not that of respondent, the court found basis in granting the latter’s prayer to

was only on said date that private respondent’s marriage with Arambulo

straighten her record and rectify the terrible mistake.10

was deemed to have been dissolved; and (4) that the second marriage of private respondent to petitioner is bigamous, hence null and void, since the first marriage was still valid and subsisting when the second marriage was contracted.

September 4, 2012 Decision and October 16, 2012 Order of the Regional Trial Court of Manila, Branch 43, in Civil Case No. 11-126203 are hereby SET ASIDE. The marriage of petitioner Yasuo Iwasawa and private respondent Felisa Custodio Gangan is declared NULL and VOID.

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:

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Persons and Family Relations Jurisprudence/full text Family Code Art 407-413 Civil Register

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

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.

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

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.

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

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. Valencia19 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

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.16 Thus, 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

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.

correction of entries in the civil registry, to wit:

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-

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.

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Page 13 of 13

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.

Persons and Family Relations Jurisprudence/full text Family Code Art 407-413 Civil Register

Page 13 of 13 10-SC and other related laws. Among these safeguards are the requirement of