Persons and Family Relations Prelims Coverage

7/28/2019 Persons and Family Relations Prelims Coverage

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REPUBLIC ACT NO. 386AN ACT TO ORDAIN AND INSTITUTE THE CIVIL CODE OF

THE PHILIPPINES

PRELIMINARY TITLE

CHAPTER 1Effect and Application of Laws

Article 1.This Act shall be known as the "Civil Code of

the Philippines." (n)

Congress passedRA 386 onJanuary 26, 1949

Article 2.Laws shall take effect after fifteen days followingthe completion of their publication in the Official Gazette, unless itis otherwise provided. This Code shall take effect one year aftersuch publication. (1a)

Civil Code took effect on August 30, 1950.

Art. 2 was amended by EO No. 200, including or anynewspaper of general circulation to the official medium ofpublication.

When a statute does not explicitly provide for its effectivity,it shall have effect after the 15-day period following

completion of its publication.


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Publication must be in full otherwise it is not publicationat all.

Covered by this rule are presidential decrees, andexecutive orders promulgated by the President in theexercise of legislative powers.(except issuances that areinternal in nature or affecting the internal management ofthe Department or Office)

Article 3.Ignorance of the law excuses no one from

compliance therewith. (2)

That every person knows the law is a conclusivepresumption.

Necessary consequence of Article 2, for it serves as abasis for the maxim, ignorantia legis non excusat

Article 4.Laws shall have no retroactive effect, unless thecontrary is provided. (3)

Exception:o When the law expressly provides for retroactivityo When the law is curative or remedialo When the law is proceduralo When the law is penal in character and favorable to

the accused (who is not a habitual criminal/delinquent:

if within a period of 10 years from the date of his releaseor conviction of the crime of serious, less seriousphysical injuries, robbery (robo), theft, estafa, or


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falsification, he is found guilty of any said crimes a thirdtime or oftener.

Article 5.Acts executed against the provisions of

mandatory or prohibitory laws shall be void, except when the lawitself authorizes their validity. (4a)

Mandatory one that the omission of which renders theproceeding or acts to which it relates generally illegal or void.(Use of shall, must, ought, should, etc.)

Prohibitory which contain positive prohibitions and arecouched in the negative terms importing that the act requiredshall not be done otherwise than designated. (use of cannot, shallnot, ought not, etc.)

Article 6.Rights may be waived, unless the waiver iscontrary to law, public order, public policy, morals, or goodcustoms, or prejudicial to a third person with a right recognized bylaw. (4a)

Waiveris the intentional relinquishment of a known right.

It is essential that a right, in order that it may be validlywaived, must be:o existent at the time of the waiver, and must beo exercised by a duly capacitated person actually

possessing the right to make the waiver.


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Waivers cannot be made if they are contrary to law, publicorder, public policy, morals or good customs, or prejudicialto a third person with a right recognized by law.

Article 7.Laws are repealed only by subsequent ones, andtheir violation or non-observance shall not be excused by disuse,or custom or practice to the contrary.

When the courts declared a law to be inconsistent with theConstitution, the former shall be void and the latter shall govern.

Administrative or executive acts, orders and regulationsshall be valid only when they are not contrary to the laws or theConstitution. (5a)

Repeal of a lawis the legislative act of abrogating througha subsequent law the effects of a previous statute orportions thereof.

Kinds of Repeal:1. Express literally declared by a new law, either in

specific terms, as where particular laws or provisions are

named and identified and declared to be repealed.

2. Implied new law contains provisions contrary to orinconsistent with those of a former without expresslyrepealing them.

Where a portion of a stature is rendered unconstitutionaland the remainder valid, the parts will be separated, and theconstitutional portion upheld. (Valid portion must be independent


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and not connected with the constitutional otherwise theconstitutional provisions shall be likewise void.)

Article 8.Judicial decisions applying or interpreting the

laws or the Constitution shall form a part of the legal system ofthe Philippines. (n)

Article 9.No judge or court shall decline to renderjudgment by reason of the silence, obscurity or insufficiency of thelaws. (6)

Judicial Legislation The judiciary cannot legislate.However, in certain instances, they do and must legislate tofill in the gaps in the law.

Article 10.In case of doubt in the interpretation orapplication of laws, it is presumed that the lawmaking bodyintended right and justice to prevail. (n)

If there is ambiguity in the law, interpretation of the lawrequires fidelity to the legislative purpose.

Article 11.Customs which are contrary to law, public orderor public policy shall not be countenanced. (n)

Article 12.A custom must be proved as a fact, according tothe rules of evidence. (n)


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Customa rule of conduct formed by repetition of acts, uniformlyobserved (practiced) as a social rule, legally binding andobligatory.

As a source of right, it (custom) should be properly established bycompetent evidence like any other fact.

Juridical Customcan supplement statutory law or applied in theabsence of such statute. It cannot prevail over a statutory rule oreven a legal rule enunciated by the Supreme Court.

Article 13.When the laws speak of years, months, days ornights, it shall be understood that years are of three hundredsixty-five days each; months, of thirty days; days, of twenty-fourhours; and nights from sunset to sunrise.

If months are designated by their name, they shall becomputed by the number of days which they respectively have.

In computing a period, the first day shall be excluded, andthe last day included. (7a)

Leap year: 366 days.

In filing motions or pleadings, should the last day of theprescriptive period falls on a holiday or a weekend, theimmediately following working day shall apply.

Article 14.Penal laws and those of public security andsafety shall be obligatory upon all who live or sojourn in the


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Philippine territory, subject to the principles of public internationallaw and to treaty stipulations. (8a)

Apply the Generality and TerritorialityCharacteristics of Penal

Laws.

Article 2.Application of its provisions.- Except as providedin the treaties and laws of preferential application,the provisions of this Code shall be enforced notonly within the Philippine Archipelago, including its

atmosphere, its interior waters and maritime zone,but also outside of its jurisdiction, against those who:

1. Should commit an offense while on a Philippineship or airship

2. Should forge or counterfeit any coin or currencynote of the Philippine Islands or obligations andsecurities issued by the Government of thePhilippine Islands;

3. Should be liable for acts connected with theintroduction into these islands of the obligationsand securities mentioned in the presidingnumber;

4. While being public officers or employees, should

commit an offense in the exercise of theirfunctions; or


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5. Should commit any of the crimes againstnational security and the law of nations, definedin Title One of Book Two of this Code.

Article 15.Laws relating to family rights and duties, or tothe status, condition and legal capacity of persons are bindingupon citizens of the Philippines, even though living abroad. (9a)

Nationality Rule Regardless of where a citizen of thePhilippines might be, he or she will be governed by Philippine

laws with respect to his/her family rights and duties, or to his orher status, condition and legal capacity.

The only absolute divorce recognized by the Philippines is onewhich is procured by the alien spouse.

Article 16. Real property as well as personal property issubject to the law of the country where it is stipulated.

However, intestate and testamentary successions, bothwith respect to the order of succession and to the amount of

successional rights and to the intrinsic validity of testamentaryprovisions, shall be regulated by the national law of the personwhose succession is under consideration, whatever may be thenature of the property and regardless of the country wherein saidproperty may be found. (10a)

Intestate Testamentary Successions, with regard to four items:a. Order of successionb.Amount of successional rights


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c. Intrinsic validity of the provisions of the willd. Capacity to succeed (art. 1039 governed by national law

of the decedent)

Article 17. The forms and solemnities of contracts, wills,and other public instruments shall be governed by the laws of thecountry in which they are executed.

When the acts referred to are executed before thediplomatic or consular officials of the Republic of the Philippines

in a foreign country, the solemnities established by Philippinelaws shall be observed in their execution.

Prohibitive laws concerning persons, their acts or property,and those which have for their object public order, public policyand good customs shall not be rendered ineffective by laws orjudgments promulgated, or by determinations or conventionsagreed upon in a foreign country. (11a)

Act or contract made in a foreign country beforediplomatic and consular officials must conform with the

solemnities under Philippine law.

By rules of international law, host country wherediplomatic and consular officials are assigned, waives itsjurisdiction over the premises of the diplomatic office.

Article 18. In matters which are governed by the Code ofCommerce and special laws, their deficiency shall be supplied bythe provisions of this Code. (16a)


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Art. 21 deals with acts contra bonus mores, and has the ff.elements:

1. There is an act which is legal2. But which is contrary to morals, good customs, public

order, or public policy3.And it is done with intent to injureArticles 19, 20, and 21 are related to each other, andunder these articles, an act which causes injury to anothermay be made the basis for an award of damages.

Common element: act must be intentional.

Article 22.Every person who through an act ofperformance by another, or any other means, acquires or comesinto possession of something at the expense of the latter withoutjust or legal ground, shall return the same to him.

Article 23.Even when an act or event causing damage toanother's property was not due to the fault or negligence of thedefendant, the latter shall be liable for indemnity if through the act

or event he was benefited.

Unjust Enrichment No person can claim what is notvalidly and legally his or hers. Hence he or she should not undulyprofit on something which does not meritoriously belong to him orher.

Nemo cum alterious detriment locupletari potest (noone should be permitted to enrich himself to the damage ofanother)


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Article 24. In all contractual, property or other relations,

when one of the parties is at a disadvantage on account of hismoral dependence, ignorance, indigence, mental weakness,

tender age or other handicap, the courts must be vigilant for hisprotection.

Court Vigilance the courts must be vigilant in protecting therights of the disadvantaged.

Article 25.Thoughtless extravagance in expenses forpleasure or display during a period of acute public want oremergency may be stopped by order of the courts at the instanceof any government or private charitable institution.

Entities given legal standing to seek injunction:1. Government;2. Or charitable institution

Article 26.Every person shall respect the dignity,

personality, privacy and peace of mind of his neighbors and otherpersons. The following and similar acts, though they may notconstitute a criminal offense, shall produce a cause of action fordamages, prevention and other relief:

(1) Prying into the privacy of another's residence;(2) Meddling with or disturbing the private life or

family relations of another;(3) Intriguing to cause another to be alienated from

his friends;


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(4) Vexing or humiliating another on account of hisreligious beliefs, lowly station in life, place of birth, physicaldefect, or other personal condition.

Protection of Human Dignitycan institute civil action formoral damages.

Article 27.Any person suffering material or moral lossbecause a public servant or employee refuses or neglects,without just cause, to perform his official duty may file an action

for damages and other relief against the latter, without prejudiceto any disciplinary administrative action that may be taken.

Relief against public officials may cause award fordamages

Article 28.Unfair competition in agricultural, commercial orindustrial enterprises or in labor through the use of force,intimidation, deceit, machination or any other unjust, oppressiveor highhanded method shall give rise to a right of action by theperson who thereby suffers damage.(Unfair Competition)

Article 29.When the accused in a criminal prosecution isacquitted on the ground that his guilt has not been proved beyondreasonable doubt, a civil action for damages for the same act oromission may be instituted. Such action requires only apreponderance of evidence. Upon motion of the defendant, the

court may require the plaintiff to file a bond to answer fordamages in case the complaint should be found to be malicious.


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If in a criminal case the judgment of acquittal is based uponreasonable doubt, the court shall so declare. In the absence ofany declaration to that effect, it may be inferred from the text ofthe decision whether or not the acquittal is due to that ground.

Civil Action proof beyond reasonable doubt means that theamount of proof which forms an abiding moral certainty that theaccused committed the crime charged.

If the guilt of the accused is not proven beyond

reasonable doubt, (and which findings amount to declarationthat the defendant was acquitted on reasonable doubt), a civilaction to prove the civil liability can still be filed where onlypreponderance of evidence is needed.

Judgment of acquittal does not constitute a bar to asubsequent civil actioninvolving the same subject matter

Article 30.When a separate civil action is brought todemand civil liability arising from a criminal offense, and no

criminal proceedings are instituted during the pendency of thecivil case, a preponderance of evidence shall likewise besufficient to prove the act complained of.

Civil obligation arising from a Criminal Offenseeven if thecivil obligation arose from a criminal offense, the required

quantum of evidence in a civil suit to claim such civil obligation isnot proof beyond reasonable doubt but merely preponderance ofevidence.


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Article 31.When the civil action is based on an obligation

not arising from the act or omission complained of as a felony,such civil action may proceed independently of the criminal

proceedings and regardless of the result of the latter.

Refers to a civil action based, not on the act or omissioncharged as a felony in a criminal case, but to one based on anobligation arising from other sources, such as law orcontract. (culpa contractual)

Article 32. Any public officer or employee, or any privateindividual, who directly or indirectly obstructs, defeats, violates orin any manner impedes or impairs any of the following rights andliberties of another person shall be liable to the latter fordamages:

(1) Freedom of religion;(2) Freedom of speech;(3) Freedom to write for the press or to maintain a

periodical publication;(4) Freedom from arbitrary or illegal detention;

(5) Freedom of suffrage;(6) The right against deprivation of property without dueprocess of law;

(7) The right to a just compensation when privateproperty is taken for public use;

(8) The right to the equal protection of the laws;

(9) The right to be secure in one's person, house,papers, and effects against unreasonable searchesand seizures;


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(10) The liberty of abode and of changing the same;(11) The privacy of communication and correspondence;(12) The right to become a member of associations or

societies for purposes not contrary to law;

(13) The right to take part in a peaceable assembly topetition the Government for redress of grievances;

(14) The right to be a free from involuntary servitude inany form;

(15) The right of the accused against excessive bail;(16) The right of the accused to be heard by himself and

counsel, to be informed of the nature and cause ofthe accusation against him, to have a speedy andpublic trial, to meet the witnesses face to face, and tohave compulsory process to secure the attendance ofwitness in his behalf;

(17) Freedom from being compelled to be a witnessagainst one's self, or from being forced to confessguilt, or from being induced by a promise of immunityor reward to make such confession, except when theperson confessing becomes a State witness;

(18) Freedom from excessive fines, or cruel and unusual

punishment, unless the same is imposed or inflictedin accordance with a statute which has not beenjudicially declared unconstitutional; and

(19) Freedom of access to the courts.

In any of the cases referred to in this article, whether or not

the defendant's act or omission constitutes a criminal offense,the aggrieved party has a right to commence an entirely separateand distinct civil action for damages, and for other relief. Such


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civil action shall proceed independently of any criminalprosecution (if the latter be instituted), and may be proved by apreponderance of evidence.

The indemnity shall include moral damages. Exemplary

damages may also be adjudicated.

The responsibility herein set forth is not demandable from ajudge unless his act or omission constitutes a violation of thePenal Code or other penal statute.

Article 33.In cases of defamation, fraud, and physicalinjuries a civil action for damages, entirely separate and distinctfrom the criminal action, may be brought by the injured party.Such civil action shall proceed independently of the criminalprosecution, and shall require only a preponderance of evidence.

Article 34. When a member of a city or municipal policeforce refuses or fails to render aid or protection to any person incase of danger to life or property, such peace officer shall beprimarily liable for damages, and the city or municipality shall besubsidiarily responsible therefor. The civil action herein

recognized shall be independent of any criminal proceedings, anda preponderance of evidence shall suffice to support such action.

Article 35.When a person, claiming to be injured by acriminal offense, charges another with the same, for which noindependent civil action is granted in this Code or any special law,

but the justice of the peace finds no reasonable grounds tobelieve that a crime has been committed, or the prosecutingattorney refuses or fails to institute criminal proceedings, the


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complaint may bring a civil action for damages against the allegedoffender. Such civil action may be supported by a preponderanceof evidence. Upon the defendant's motion, the court may requirethe plaintiff to file a bond to indemnify the defendant in case the

complaint should be found to be malicious.

If during the pendency of the civil action, an informationshould be presented by the prosecuting attorney, the civil actionshall be suspended until the termination of the criminalproceedings.

Rule 111 of the Rules of Court with respect toprocedure in reservations in criminal cases with respect tocivil liability of the accused:

Sec. 1. Institution of criminal and civil actions Reservationof the right to institute separately the civil action shallbe made before the prosecution starts presentingevidence.

Sec. 2. When separate civil action is suspended if criminal

action has commenced, civil action shall wait untilfinal judgment is rendered. If it is filed after civil actionwas instituted, the latter shall be suspended.

Sec. 3. When civil action may proceed independently - incases under Arts. 32-34 and 2176.

Sec. 4. Effect of Death on civil actions death of accusedafter arraignment and during pendency of criminal


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action shall extinguish civil liability. If it is anindependent civil action independent of the criminalobligations, it shall continue against the estate orlegal representatives of the accused. (for minors,

guardian ad litem)

Sec. 5. Judgment in civil action not a bar Final judgmentabsolving defendant from civil liability is not a bar toinstitution of criminal action.

Article 36.Pre-judicial questions, which must be decidedbefore any criminal prosecution may be instituted or mayproceed, shall be governed by rules of court which the SupremeCourt shall promulgate and which shall not be in conflict with theprovisions of this Code.

In both criminal and civil action, criminal case takesprecedence. Exception to this rule is, Prejudicial Question.

Prejudicial Question one that arises in a case, theresolution of which is a logical antecedent of the issue involved

therein, and the cognizance of which pertains to another tribunal.

Two Cases involved: Criminal and Civil

Elements of Prejudicial Question:1. Civil action involves an issue similar or

intimately related to the issue raised in criminal action2. Resolution of such issue determines whether

the criminal action may proceed.


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BOOK IPERSONS

TITLE ICIVIL PERSONALITY

CHAPTER 1General Provisions

Article 37.Juridical capacity, which is the fitness to bethe subject of legal relations, is inherent in every naturalperson and is lost only through death. Capacity to act, whichis the power to do acts with legal effect, is acquired and maybe lost. (n)

Juridical Capacityis acquired upon the birth of a person, and isterminated only upon death.

Capacity to act is not inherent in a person; it is attained andconferred, and therefore it can likewise be lost not only by deathof the person but by any valid cause provided by law.

Person any being, natural or artificial, capable of possessing

legal rights and obligations.

Juridical Personthose created by law.


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Full civil capacityjuridical capacity (+) capacity to act.

Article 38.Minority, insanity or imbecility, the state of being

a deaf-mute, prodigality and civil interdiction are mere restrictionson capacity to act, and do not exempt the incapacitated personfrom certain obligations, as when the latter arise from his acts orfrom property relations, such as easements. (32a)

Article 39.The following circumstances, among others,

modify or limit capacity to act: age, insanity, imbecility, thestate of being a deaf-mute, penalty, prodigality, familyrelations, alienage, absence, insolvency and trusteeship. Theconsequences of these circumstances are governed in this Code,other codes, the Rules of Court, and in special laws. Capacity toact is not limited on account of religious belief or political opinion.

A married woman, twenty-one years of age or over, isqualified for all acts of civil life, except in cases specified by law.(n)

CHAPTER 2Natural Persons

Article 40.Birth determines personality; but theconceived child shall be considered born for all purposesthat are favorable to it, provided it be born later with the

conditions specified in the following article. (29a)


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Article 41.For civil purposes, the foetus is consideredborn if it is alive at the time it is completely delivered fromthe mother's womb. However, if the foetus had an intra-uterine life of less than seven months, it is not deemed born

if it dies within twenty-four hours after its complete deliveryfrom the maternal womb. (30a)

Birth Certificatebest evidence of the facts of birth Evidence of Life respiration upon the delivery of the

baby

Confidentiality of birth records cannot be revealedexcept in cases provided by law

Article 42.Civil personality is extinguished by death.The effect of death upon the rights and obligations of the

deceased is determined by law, by contract and by will. (32a)

The rights and obligations of a dead personcan still beregulated by contract, will or the law.

Any person who shows disrespect to the dead, or

wrongfully interferes with a funeral, shall be liable to the family ofthe deceased for damages, material and moral.

Article 43. If there is a doubt, as between two or morepersons who are called to succeed each other, as to which ofthem died first, whoever alleges the death of one prior to the

other, shall prove the same; in the absence of proof, it ispresumed that they died at the same time and there shall be notransmission of rights from one to the other. (33)


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Rules of Court:1. If both were under the age of 15 years, the older is

presumed to have survived

2. If both were above the age of 60, the younger ispresumed to have survived

3. If one is under 15 and the other above 60, the former ispresumed to have survived

4. If both be over 15 and under 60, and the sexes bedifferent, male is presumed to have survived; if the sexesbe the same, then the older

5. If one is under 15 or over 60, and the other betweenthose ages, the latter (under 15) is presumed to havesurvived.

CHAPTER 3Juridical Persons

Article 44.The following are juridical persons:(1) The State and its political subdivisions;

(2) Other corporations, institutions and entities for publicinterest or purpose, created by law; their personality


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begins as soon as they have been constitutedaccording to law;

(3) Corporations, partnerships and associations forprivate interest or purpose to which the law grants a

juridical personality, separate and distinct from that ofeach shareholder, partner or member. (35a)

Article 45.Juridical persons mentioned in Nos. 1 and 2 ofthe preceding article are governed by the laws creating orrecognizing them.

Private corporations are regulated by laws of generalapplication on the subject.

Partnerships and associations for private interest orpurpose are governed by the provisions of this Code concerningpartnerships. (36 and 37a)

Article 46.Juridical persons may acquire and possessproperty of all kinds, as well as incur obligations and bring civil orcriminal actions, in conformity with the laws and regulations of

their organization. (38a)

Juridical person is a being of legal existence susceptible ofrights and obligations, or of being the subject of juridical relations:

State can enter into treaties and contracts; fundamentalrule: the state cannot be sued without its consent. Suabilitydepends on the consent of the state to be sued, liability onthe applicable law and the established facts.


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Political Subdivisions are municipal corporations;

consists of the provinces, cities, and municipalities

Corporation an artificial being created by operation oflaw, having the right of succession and the powers,attributes, and properties expressly authorized by law orincident to its existence.

Partnership two or more persons bind themselves tocontribute money, property to a common fund to deriveprofits.

Article 47.Upon the dissolution of corporations, institutionsand other entities for public interest or purpose mentioned in No.2 of article 44, their property and other assets shall be disposedof in pursuance of law or the charter creating them. If nothing hasbeen specified on this point, the property and other assets shallbe applied to similar purposes for the benefit of the region,province, city or municipality which during the existence of the

institution derived the principal benefits from the same. (39a)

TITLE XFUNERALS (n)

Article 305.The duty and the right to make arrangements

for the funeral of a relative shall be in accordance with the orderestablished for support, under article 294. In case of descendantsof the same degree, or of brothers and sisters, the oldest shall be


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preferred. In case of ascendants, the paternal shall have a betterright.

Arrangements duty-bound to make arrangements shall be

in accordance with the order established for support:1. Spouse(in his/her absence or incapacity)2. Descendants in the nearest degree3.Ascendants in the nearest degree (paternal have the

better right)4. Brothers and sisters(oldest shall be preferred)

Article 306.Every funeral shall be in keeping with thesocial position of the deceased.

Article 307. The funeral shall be in accordance with theexpressed wishes of the deceased. In the absence of suchexpression, his religious beliefs or affiliation shall determine thefuneral rites. In case of doubt, the form of the funeral shall bedecided upon by the person obliged to make arrangements forthe same, after consulting the other members of the family.

The law mandates that every funeral shall be in keepingwith the social position of the deceased.

Article 308.No human remains shall be retained, interred,disposed of or exhumed without the consent of the personsmentioned in articles 294 and 305.


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Article 309.Any person who shows disrespect to the dead,or wrongfully interferes with a funeral shall be liable to the family

of the deceased for damages, material and moral.

Damages can be sought against those who allowdisrespect to the dead, or wrongfully interfere with a funeral.

Article 310.The construction of a tombstone or

mausoleum shall be deemed a part of the funeral expenses, andshall be chargeable to the conjugal partnership property, if thedeceased is one of the spouses.

TITLE XIIIUse of Surnames (n)

Article 364. Legitimate and legitimated children shallprincipally use the surname of the father.

Article 365. An adopted child shall bear the surname of theadopter.

R.A. 8552 Domestic Adoption Act of 1998Adoptee is considered legitimate son/daughter of the

adopter for all intents and purposes and as such is entitled to all

the rights and obligations provided by law to legitimatesons/daughters without discrimination of any kind


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Article 366. A natural child acknowledged by both parentsshall principally use the surname of the father. If recognized byonly one of the parents, a natural child shall employ the surnameof the recognizing parent.

Article 367. Natural children by legal fiction shall principallyemploy the surname of the father.

Article 368. Illegitimate children referred to in article 287shall bear the surname of the mother.

Two classes of children:1. Legitimate2. Illegitimate

Amended by R.A. 9255, An act allowing illegitimatechildren to use the surname of their father, amending for thepurpose article 176 of Executive Order No. 209, otherwiseknown as the "family code of the Philippines"

Article 369. Children conceived before the decree

annulling a voidable marriage shall principally use the surname ofthe father.

Annullable marriage is valid until annulled hence a childconceived before its annulment is legitimate.

Article 370.A married woman may use:


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(1) Her maiden first name and surname and add herhusband's surname, or

(2) Her maiden first name and her husband's surname or(3) Her husband's full name, but prefixing a word indicating

that she is his wife, such as "Mrs."

Directory in character; A married woman can maintain her name and surname

or follow any of the names in Article 370.

Article 371. In case of annulment of marriage, and the wifeis the guilty party, she shall resume her maiden name andsurname. If she is the innocent spouse, she may resume hermaiden name and surname. However, she may choose tocontinue employing her former husband's surname, unless:

(1) The court decrees otherwise, or(2) She or the former husband is married again to another

person.

Article 372. When legal separation has been granted, thewife shall continue using her name and surname employed before

the legal separation.

Article 373. A widow may use the deceased husband'ssurname as though he were still living, in accordance with article370.

Article 374.In case of identity of names and surnames, theyounger person shall be obliged to use such additional name orsurname as will avoid confusion.


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Article 375. In case of identity of names and surnames

between ascendants and descendants, the word "Junior" can beused only by a son. Grandsons and other direct male

descendants shall either:

(1) Add a middle name or the mother's surname, or(2) Add the Roman numerals II, III, and so on.

Article 376.No person can change his name or surname

without judicial authority.

Amended by RA 9048An Act authorizing the City or MunicipalCivil Registrar of the Consul General to Correct a Clerical Error orTypographical Error in an Entry and/or Change of First Name orNickname in the Civil Register without the need of Judicial Order

Grounds for objecting approval of decision:1. Error is not clerical or typographical2. Corrected entries are substantial or controversial as it

affects the civil status of a person

3.Basis for changing the first name or nickname does not fallunder Section 4.(valid grounds)

a. Name is ridiculous, tainted with dishonor or extremelydifficult to pronounce

b. New name is habitually and continuously used andpetitioner is publicly known by said name


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Change of name is a privilege and not a right. Petitionermust show reasonable cause before he is authorized to file.

Effect it does not alterfamily relations, rights or duties,

legal capacity, civil status or citizenship.

A petition for change of SURNAME is a judicial proceeding.

Article 377. Usurpation of a name and surname may bethe subject of an action for damages and other relief.

Elements of Usurpation of Name:1.An actual use of anothers name by defendant2. The use is unauthorized3. Use of anothers name is designate personality or

identify a person

Article 378. The unauthorized or unlawful use of anotherperson's surname gives a right of action to the latter.

Article 379. The employment of pen names or stage

names is permitted,provided it is done in good faith and there isno injury to third persons.Pen names and stage names cannot beusurped.

Article 380. Except as provided in the preceding article, noperson shall use different names and surnames.


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TITLE XIV

ABSENCE

CHAPTER 1Provisional Measures in Case of Absence

Article 381. When a person disappears from his domicile,

his whereabouts being unknown, and without leaving an agent toadminister his property, the judge, at the instance of an interestedparty, a relative, or a friend, may appoint a person to representhim in all that may be necessary.

This same rule shall be observed when under similarcircumstances the power conferred by the absentee has expired.(181a)

Article 382. The appointment referred to in the precedingarticle having been made, the judge shall take the necessary

measures to safeguard the rights and interests of the absenteeand shall specify the powers, obligations and remuneration of hisrepresentative, regulating them, according to the circumstances,by the rules concerning guardians. (182)

Article 383. In the appointment of a representative, the

spouse present shall be preferred when there is no legalseparation.


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If the absentee left no spouse, or if the spouse present is aminor, any competent person may be appointed by the court.(183a)

CHAPTER 2

Declaration of Absence

Article 384.Two years having elapsed without any newsabout the absentee or since the receipt of the last news, and fiveyears in case the absentee has left a person in charge of theadministration of his property, his absence may be declared.

(184)

Article 385. The following may ask for the declaration ofabsence:

(1) The spouse present;(2) The heirs instituted in a will, who may present an

authentic copy of the same;(3) The relatives who may succeed by the law of intestacy;(4) Those who may have over the property of the absentee

some right subordinated to the condition of his death. (185)

Article 386. The judicial declaration of absence shall nottake effect until six months after its publication in a newspaper ofgeneral circulation. (186a)

Spouse: Cause for involuntary judicial separation of property Basis for termination of absolute community or conjugalpartnership Ground for transfer of exclusive properties


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Basis for termination of parental authority

Testamentary Heirs: Can seek judicial declaration of absence of testator

Intestate heirs: Legitimate and illegitimate relatives Spouse Collateral relatives

Interested Party:Those who possess some right over the property in the case oftestators death

Effectivity of Judicial Declaration: Shall not effect until six months after its publication Absence shall be counted from the date of the last news

of the absentee

CHAPTER 4

Presumption of Death

Article 390. After an absence of seven years, it beingunknown whether or not the absentee still lives, he shall bepresumed dead for all purposes, except for those ofsuccession.

The absentee shall not be presumed deadfor the purposeof opening his succession till after an absenceoften years. If


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he disappeared after the age of seventy-five years,an absenceof five years shall be sufficient in order that his succession maybe opened. (n)

Article 391.The followingshall be presumed dead for allpurposes, including the division of the estate among the heirs:

(1) A person on board a vessel lost during a seavoyage, or an aeroplane which is missing, whohas not been heard of for four years since the loss of

the vessel or aeroplane;

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

(3) A person who has been in danger of death underother circumstances and his existence has notbeen known for four years.(n)

Article 392.If the absentee appears, or without appearinghis existence is proved, he shall recover his property in the

condition in which it may be found, and the price of any propertythat may have been alienated or the property acquired therewith;but he cannot claim either fruits or rents. (194)

Absence:That the person is unheard of for seven years, not in his domicile

and his actual residence is unknown, and that for this, hisexistence is doubtful, that after seven years, he is presumeddead.


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Period:For purposes of remarriage, four years is enough.

Documents

Persons and Family Relations Prelims Coverage