Answers to
Prelim Pointers in Civil Code – Persons
By: Francise Mae Montilla
Mordeno
1.
RA 9048: 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 judicial order amending
for this purpose Art. 376 and 412 of the Civil Code of the Philippines
2.
Who may file the petition and where?
ü Any person having direct and personal interest in the
correction of a clerical or typographical error in an entry and/or change of 1st
name or nickname in the civil register may file
3.
Where will the petition be filed?
ü The petition should be filed in person, a verified
petition with the local civil registry office of the city or municipality where
the record being sought to be corrected or changed is kept
4.
Purpose of Civil Registry
è Art. 407
Acts, events and judicial decrees concerning
the civil status of persons shall be recorded in the civil register.
5.
Contents of Civil Registry
è Art. 408
The
following shall be entered in the civil register:
1)
Births
2)
Marriages
3)
Deaths
4)
Legal Separations
5)
Annulment of Marriages
6)
Judgments declaring marriages
void from the beginning
7)
Legitimations
8)
Adoptions
9)
Acknowledgements of natural
children
10)
Naturalization
11)
Loss
12)
Recovery of Citizeship
13)
Civil Interdiction
14)
Judicial determination of
filiation
15)Voluntary
emancipation of a minor (wala nan i)
16)Change of
name
6.
Probative value of the entries in the civil registry
è Although the Civil registry is an official record, still
the entries made therein are only PRIMA FACIE (can still be rebutted by
contrary to such) evidence of the facts stated
7.
What is the civil liability of the civil registrar?
è Art. 411
Every civil
registrar shall be civilly responsible for any unauthorized alteration made in
any civil register to any person suffering damage thereby. However, the civil
registrar may exempt himself from such liability if he proves that he has taken
every reasonable precaution to prevent the unlawful alteration.
8.
Difference between summary proceedings and adversarial
proceedings
Under Art.
408
è Clerical or typographical errors- can be changed by mere
SUMMARY PROCEEDINGS
è If substantial change- can be changed by ADVERSARIAL
PROCEEDINGS
9.
Different grounds for change of 1st name or
nickname
1)
The petitioner finds the 1st
name or nickname to be:
a.
Ridiculous
b.
Tainted with dishonor
c.
Extremely difficult to write or
pronounce
2)
The new 1st name or
nickname has been habitually and continuously used by the petitioner and he has
been publicly known by that 1st name or nickname in the community
3)
The change will avoid confusion
10.Case: Mossesgeld Vs. CA
Under Art. 407
|
MOSSESGELD V. COURT OF APPEALS
GR
111455
December
23, 1998
Mandamus
will not lie to compel the local civil register to register the certificate
of live birth of an illegitimate child using the father’s surname, even
with the consent of the latter. Mandamus does not lie to compel the
performance of an act prohibited by the law.
|
11.Presumption of death (Arts. 390,
391, 392)
ART. 390
After an absence of 7 years, it being unknown
whether or not the absentee still lives, he shall be presumed dead for all
purposes, except for those of succession.
The absentee shall not be presumed dead for
the purpose of opening his succession till after an absence of 10 years. If he
disappeared after the age of 75 years, an absence of 5 years shall be
sufficient in order that his succession may be opened.
ART. 391
The following shall be presumed dead for all
purposes, including the division of the estate among the heirs:
(1.)
A person on board a vessel lost
during a sea voyage, or an aeroplane which is missing, who has not been heard
of for 4 years since the loss of the vessel or the aeroplane
(2.)
A person in the armed forces whi
has taken part in war, and has been missing for 4 years
(3.)
A person who has been in danger
of death under other circumstances and his existence has not been known for 4
years.
ART 392
If the absentee appears, or without appearing
his existence is proved, he shall recover his property in the condition in
which it may be found, and the price of any property that may have been
alienated or the property acquired therewith; but he cannot claim either fruits
or rents.
12.Declaration of provisional
measures in case of absence (Art. 381)
ART. 381
When a person disappears from his domicile,
his whereabouts being unknown, and without leaving an agent to administer his
property, the judge, at the instance of an interested party, a relative, or a
friend, may appoint a person to represent him in all thatmay be necessary.
This same rule shall be observed when under
similar circumstances the power conferred by the absentee has expired.
13.When absence may be judicially
declared
ART. 384
2 years having elapsed without any news about
the absentee or since the receipt of the last news, and 5 years in case the
absentee has left a person in charge of administration of his property, his
absence may be declared.
14.Who can ask for declaration of
absence?
ART. 385
The following may ask for the declaration of
absence:
(1.)
The spouse present;
(2.)
The heirs instituted in a will,
who may present an authentic copy of the same;
(3.)
The relatives who may succeed by
the law of intestacy;
(4.)
Those who may have over the
property of the absentee some right subordinated to the condition of his death.
15.When Judicial Declaration of
absence becomes effective
ART. 386
The judicial declaration of absence shall not
take effect until 6 months after its publication in a newspaper of general
circulation.
16. Who will make arrangements for burial?
ART.
305
The
duty and the right to make arrangements for the funeral of a relative shall be
in accordance with the order established for support, under Art 294 (now
article 199 of the Family Code). In case of descendants of the same degree, or
brothers and sisters, the oldest shall be preferred. In case of ascendants, the
paternal shall have a better right.
Art.
199 of the Family Code:
(1.) Spouse
(2.) Descendants
in the nearest degree
(3.) Ascendants
in the nearest degree
(4.) Brothers and
sisters
17. Order of preference in forms of burial?
ART.
307
The
funeral shall be in accordance with the expressed wishes of the deceased. In
the absence of such expression, his religious beliefs or affiliation shall
determine the funeral rites. In case of doubt, the form of the funeral shall be
decided upon by the person obliged to make arrangements for the same, after
consulting the other members of the family.
18. Burial be made according to social position
ART.
306
Every
funeral shall be in keeping with the social position of the deceased
è To prohibit
the pompous and elaborate funeral of a criminal who has been given death
penalty. The reason: TO not give undue publicity to the notoriety in life of a
criminal.
19. What name will the spouse use incase of annulment
ART.
371
In
case of annulment of marriage, and the wife is the guilty party, she shall
resume her maiden name and surname. If she is the innocent spise, she may
resume her maiden name and surname. However, she may choose to continue
employing her former husband’s surname, unless:
(1.) The court
decrees otherwise, or
(2.) She or the
former husband is married again to another person
20. Ways a married woman use surname
ART.
370
A
married woman may use:
(1.) Her maiden
first name and surname and add her husband’s surname, or
(2.) Her maiden
first name and her husband’s surname, or
(3.) Her
husband’s full name, but prefixing a word indicating that she is his wife, such
as “Mrs.”
21. Rules of survivorship
ART.
43 (Presumption on survivorship accdg. To the Civil Code)
If there is doubt, as between 2 or more persons
who are called to succeed each other, as to which of them died first, whoever
alleges the death of one prior to the other, shall prove the same; in the
absence of proof, it is presumed that they died at the same time and there
shall be no transmission of rights from to the other.
RULE
131 (Presumption on survivorship under the Revised Rules of Court)
When
two persons perish in the same calamity, such as a wreck, battle, or
conflagration, and it is not shown who died first, and there are no particularcircumstances
from which it can be inferred, the survivorship is presumed from the
probabilities resulting from the strength and age of the sexes, according to
the following rules:
(1.) < 15
v <15 = OLDER
(2.) >60
v > 60 = YOUNGER
(3.) <15
v > 60= <15
(4.) both are > 15 or < 60:
a. Different
sexes= Male
b. Same sexes=
Older
(5.) if one be <15 or >60 and
the other between 15 and 60= between 15 and 60
22. When is
a foetus considered born
ART.
41
For
civil purposes, the foetus is considered born if it is alive at the time it is
completely delivered from the mother’s womb. However, if the foetus has an
intra-uterine life of less than 7 months, it is not deemed born if it dies
within 24 hours after its complete delivery from the maternal womb.
23. Doctrine
of presumptive personality
àpersonality does not begin at birth; it begins at
conception. This personality at conception is called presumptive personality.
25. When is
civil personality extinguished
ART.
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.
26.
Restrictions on the Capacity to Act
ART.
38.
Minority,
insanity or imbecility, the state of being deaf mute, prodigality and civil
interdiction are mere restrictions to the capacity to act, and do not exempt
the incapacitated person from certain obligations, as when the latter arise
from his acts or from property relations, such as easements.
28. Theory
of Territoriality and Generality
ART.
14
Penal
laws, and those of public security and safety, shall be obligatory upon those
who live or sojourn in the Philippine territory, subject to the principles of
public international law and to treaty stpulations.
28. Theory
of Exterritoriality
ARTICLE 17
The
forms and solemnities of CONTRACTS, WILLS and OTHER PUBLIC INSTRUMENT
Shall
be governed by the laws of the country in which they are executed.
When
the acts referred to are executed before the diplomatic or consular officials
of the Philippines in a foreign country, the solemnities established by the
Philippine laws shall be observed in their execution.
Probative
laws concerning Persons, Their acts or property and Those which have for their
object public order, public policy and good customs
Shall
not be rendered ineffective by laws or judgments promulgated, or by
determinations or conventions agreed upon in a foreign country.
29.
Principle of Nationality
ART.
15
Laws
relating to family rights and duties or to the status, condition and legal
capacity of persons are binding upon citizens of the Philippines, even though
living abroad.
30. LEX REI
SITAE
ART.
16
Real
property as well as personal property is subject to the law of the country
where it is situated.
However,
intestate and testamentary successions, both with respect to the order of
succession and to the amount of successional rights and to the intrinsic
validity of testamentary provisions, shall be regulated by the national law of
the person whose successions is under consideration, whatever may be the nature
of the property and regardless of the country wherein said property may be
found.
31. RENVOI
PROBLEM
Renvoi literally means a referring back; the problem
arises when there is a doubt as to whether a reference in our law (such as Art.
16, par 2. Of the Civil Code) to a foreign law (such as the national law of the
deceased)—
a. is a
reference to the INTERNAL law of said foreign law;
b. is a
reference to the WHOLE of the foreign law, including its CONFLICTS RULES
32. HOW RE
LAWS REPEALED?
Art.
7
Laws
are repealed only by subsequent ones, and their violation or non-observance
shall not be excused by disuse, or custom or practice to the contrary.
When
the courts declare a law to be inconsistent with the Constitution, the former
shall be void, and the latter shall govern.
Administrative
or executive acts, orders and regulations shall be valid only when they are not
contrary to the laws or the Constitution.
33. JUDICIAL
DECISIONS
ART.
8
Judicial
decisions applying or interpreting the laws or the Constitution shall form part
of the legal system of the Philippines.
34.
PRINCIPLE OF STARE DECISIS
UNDER
ART. 7
The
doctrine of Stare Decisis or let it stand, is adhered in the Philippines for
reasons of stability in the law. The doctrine, which is really “adherence to
the precedents” states that once a case has been decided one way, then another
case, involving the same point at issue, should be decided in the same manner.
Of
course, when a case has been decided erroneously, such an error must not be
perpetuated by blind obedience to the doctrine.
35.
IGNORANCE OF THE LAW EXCUSES NO ONE
Art.
3
Ignorance
of the law excuses no one from compliance therewith.
ü Refers not
only to the literal words of the law itself, but also to the meaning or
interpretation given to said law by our courts of justice
36. Rule
when the repealing law is itself repealed
ART.
7
EFFECT
IF THE REPEALING LAW IS ITSELF REPEALED
ü Expressed
|
A expressly repealed by B
B expressly repealed by C
A not revived unless
expressly provided by C
|
ü Implied
|
A impliedly repealed by B
B impliedly repealed by C
A is REVIVED!! Unless C
provides otherwise
|
37.
PROSPECTIVITY OF LAWS
ART.
4
Laws
shall have no retroactive effect, unless the contrary is provided
A.
REASON WHY LAWS IN GNERAL ARE PROSPECTIVE
è While the
judge looks backward, the legislator must look forward
B.
6 EXCEPTIONS TO THE PROSPECTIVE EFFECT OF THE LAW
1. If the law themselves provide for
retroactivity but in no case must an ex post facto law be passed
2. If the laws
are REMEDIAL in nature
3. If the
stature is PENAL in nature, provided:
a. It is
favorable to the accused/ the convict
b. The accused/convict
is not a habitual delinquent as the term defined under the RPC
4. If the law
are of an EMRGENCY nature
5. If the law
is CURATIVE
6. If a
SUBSTANTIVE RIGHT be declared for the 1st rime, unless vested rights
are impaired.
38. Rights
are waivable
ART.
6
Rights
may be waived, unless the waiver is contrary to law, public order, public
policy, morals or good cutoms, or prejudicial to a 3rd person with a
right recognized by law.
B.
RULES FOR THE WAIVER OF RIGHTS
è General
Rule: Rights may be waived
è Exceptions:
ü When the
waiver is contrary to law, public order, public policy, morals or good customs
üWhen the
waiver is prejudicial to a third person with a right recognized by law
à REQUISITES
OF A VALID WAIVER:
1. The person
waiving must be CAPACITATED to make the waiver
2. The waiver
must be made CLEARLY, but not necessarily expressed.
3. The person
waiving must ACTUALLY HAVE THE RIGHT which he is renouncing
4. In certain
instances, the waiver, as in the express remission of a debt owed in favor of
the waiver, must comply with the formalities of donation.
5. The waiver
must not be contrary to law, morals, public policy, public order or good
customs
6. Waiver must
not prejudice others with a right recognized by law.
39. HOW ARE
PERIODS COMPUTED
ART.
13
When
the law speaks of years, months, days or nights, it shall be understood that
years are of 365 days each; months, of 30 days; days of 24 hours; and nights
from sunset to sunrise.
If
months are designated by their name, they shall be computed by the number of
days which they respectively have.
In
computing a period, the 1st day shall be excluded and the last day
included.
40. DOCTRINE
OF PROCESSUAL PRESUMPTION
A. IGNORANCE OF
THE FACT
·
Ignorance of foreign law is not ignorance of the law, but
ignorance of the fact because foreign laws must be alleged and proved as
matters of fact there being no judicial notice of said foreign laws
·
If the foreign law is not properly alleged and proved,
the presumption is that it is the same as our law (PROCESSUAL PRESUMPTION)
41. WHEN
DOES LAW TAKE EFFECTS
ART
2 amended by EO 200
Laws
shall take effect after 15 days following the completion of their publication
in the official gazette, or in a newspaper of general circulation, unless it is
otherwise provided. This code shall take effect 1 year after such publication.
42. WHEN IS
PUBLICATION NEEDED
[U1]I
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