SPECIAL
PROCEEDINGS
Rules
103 & 108; RA 9048
By
Olive Cachapero
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RULE 103
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RULE 108
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RA 9048
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Title
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Change of name (name which appears in the civil
register)
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Cancellation
or correction of entries in the civil registry
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Correct
a clerical or typographical error in an entry and/or change of first name or
nickname
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Nature
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{
Adversarial;
{
judicial;
{
substantial change
{
in rem – to vest jurisdiction, comply with all the requirements
{
not a matter of right but of judicial discretion
and a privilege
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{
Adversarial;
{
judicial
{
Substantial
error
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{
Summary;
{
administrative;
No judicial order
necessary
{
Clerical/typographical error; change
of first name or nickname - changes or corrections of a harmless and
innocuous nature
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Petitioner
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All natural persons regardless of status,
including domiciled aliens
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Any person interested in any act, event, order or
decree concerning the civil status of persons which has been recorded in the
civil register
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Any person having direct and
personal interest in the correction of a clerical or typographical error
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Parties
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a)
the civil registrar and
b)
all persons who have or claim any interest which
would be affected thereby shall be made parties to the proceeding.
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The city/municipal civil registrar, Consul General, including the
Clerk of the Shari'a Court in his capacity as District or Circuit Registrar
of Muslim Marriages, Divorces, Revocations of Divorces and Conversions, are
hereby authorized to correct clerical or typographical error and to change
first name or nickname in the civil register.
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Subject matter
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ü
First name,
ü
nickname,
ü
middle name,
ü
surname
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entries in the civil register may be cancelled or
corrected:
a)
births;
b)
marriage;
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.
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i)
clerical or
typographical errors and
ii)
change of first
name or nickname
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Venue
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1)
RTC of the province in which he resides, or,
2)
in the City of Manila, to the Juvenile and Domestic
Relations Court.
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RTC of the province where the corresponding civil
registry is located.
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1)
with the local
civil registry office of the city or municipality where the record being
sought to be corrected or changed is kept.
2)
In case the
petitioner has already migrated to another place in the country - the
petition may be filed, in person, with the local civil registrar of the place
where the interested party is presently residing or domiciled.
3)
Citizens of the
Philippines who are presently residing or domiciled in foreign countries may
file their petition, in person, with the nearest Philippine Consulates.
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Contents of Petition or affidavit
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a)
That the petitioner has been a bona fide resident of the province where the
petition is filed for at least 3 years prior to the date of such filing;
b)
The cause for which the change of the
petitioner's name is sought;
c)
The name asked for.
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The affidavit shall set forth
i)
facts necessary to
establish the merits of the petition and
ii)
shall show
affirmatively that the petitioner is competent to testify to the matters
stated.
iii)
The petitioner
shall state the particular erroneous entry or entries, which are sought to be
corrected and/or the change sought to be made.
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Form
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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,
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a verified petition for the cancellation or
correction of any entry relating thereto
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The verified petition shall be in the form of an
affidavit, subscribed and sworn to before any person authorized by the law to
administer oaths.
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Notice, Publication & posting
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Court shall direct that a copy of the order be
published before the hearing at least once a week for 3 successive weeks in
some newspaper of general circulation published in the province, as the court
shall deem best.
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Court shall cause reasonable notice thereof to be
given to the persons named in the petition. (publication is sufficient to
include all interested parties.)
The court shall also cause the order to be
published once a week for 3 consecutive weeks in a newspaper of general
circulation in the province.
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Sec. 9
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Hearing
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The date set for the hearing shall not be within
30 days prior to an election nor within 4 month after the last publication of
the notice.
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Oppositor
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1)
Any interested person
2)
The Solicitor General or the proper provincial or
city fiscal shall appear on behalf of the Government of the Republic.
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1)
The civil registrar and
2)
any person having or claiming any interest under
the entry whose cancellation or correction is sought
within fifteen (15) days from notice of the petition, or from the last
date of publication of such notice, file his opposition thereto.
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Non-adversarial
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Grounds
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1)
when the name is ridiculous, tainted with
dishonor, or is extremely difficult to write or pronounce;
2) when the request for change is a consequence of a change of status,
such as when a natural child is acknowledged or legitimated; and
3) when the change is necessary to avoid confusion,
4) having continuously used and had been known since childhood by a
Filipino name, unaware of her alien parentage;
5) a sincere desire to adopt a Filipino name to erase
signs of a former alienage, al in good faith and without prejudicing surname
causes embarrassment and here is no showing the desired change of name was
for a fraudulent purpose or that it would prejudice public interest.
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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 by that first name or nickname in the
community: or
3.
The change will
avoid confusion.
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Judgment
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that such name be changed in accordance with the
prayer of the petition.
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court may either dismiss the petition or issue an
order granting the cancellation or correction prayed for.
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When
the petition for a change of first name is approved by the C/MCR or CG or
D/CR and such decision has not been impugned by the CRG, the change shall be
reflected in the birth certificate by way of marginal annotation.
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Service of judgment
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Judgments or orders – shall be furnished the
civil registrar of the municipality or city where the court issuing the same
is situated, who shall forthwith enter
the same in the civil register
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In either case (dismissed or granted), a
certified copy of the judgment shall be served upon the civil registrar
concerned who shall annotated the
same in his record.
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Example
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Adopted child’s change of surname
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Illegitimacy
Sex
Nationality/citizenship
Civil
status
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NOTES
RULE
103
{ Lack of
verification – not jurisdictional; only renders the pleading fatally defective
(which may be corrected) hence warrants dismissal of the petition
{ The petition
must be filed by the person desiring to change his/her name, even if it may be
signed and verified by some other person (example mother of a minor. The minor would
have to file the petition herself when she reaches the age of majority)
{ All names or
aliases must appear in the caption of the petition – omission is fatal to the
petition
{ Purpose of
publication:
to apprise the public of the pendency of the petition so that those who may
know of any legal objection to it might come forward with the iformation in
order to determine the fitness of the petitioner…” (jurisdictional)
{ A petition to
change the name of an infant should be granted only where to do so is clearly
for the best interest of the child (petition filed by the mother)
{ Insufficient
grounds for change of name:
Ø Separation of
spouses
Ø No proof of
prejudice by use of official name
Ø Mere use and
known y different name
Ø No proof hat
true name evokes derisive laughter
RULE108
{ Applies only to
substantial changes and corrections in entries in the civil register. 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.
{ Note: Te correction should
not imply a change of status but a mere rectification of error; there must be
no increase or diminution of substantive right
{ The child may not
collaterally impugn his legitimacy as entered in the register in an action of
partition (purpose: declare him illegitimate); but he may file this petitioner
mother is not the latter’s child at all)
{ A clerical
error is one which is visible to the eyes or obvious to the
understanding; an error made by a clerk or a transcriber; a mistake in copying
or writing, or a harmless change such as a correction of name that is clearly
misspelled or of a misstatement of the occupation of the parent. Substantial or contentious alterations
may be allowed only in adversarial proceedings, in which all interested parties
are impleaded and due process is properly observed.
{ Period to file
petition:
from discovery of error
{ Purpose of
proceedings: establish the status or right of a party, or a particular
fact
{ 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 proceeding 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.
RA
9048
{ The correction of clerical or typographical error shall be availed of
only once with respect to a particular entry or entries in the same civil
registry record. However, with regard to the change of first name or nickname
in the birth certificate, the privilege shall be availed of only once subject
to Rule 12 hereunder.
Examples
{ But if your
birth certificate shows Ma. Cecilia instead of Maria Cecilia – cannot be
corrected under 9048, it is not typographical error. You have to avail of Art.
103
{ Corpuz and
Corpus or Gutierrez and Gutierres – not typographical errors
{ Another example: First name is
Enrile and family name is Teodoro (baliktad diba?). If interchanged, it is not
innocuous. If it affects business relations or otherwise rights and
obligations, you have to go to 108
{ The error is
innocuous. (ex. Date of birth is 1989 but what appears is 1889; a woman gave
birth when she was 35yo but what appears is she gave birth when she was 5yo) –
clearly typographical error
{ NOTE: But
there are special cases where because of evidence presented were considered
under 9048, so it is now a matter of evidence. As long as you can support your
claim, and the best support would be also documents regarding the name of your
parents, brothers and sisters, grandparents. (Example: Their names are also
Gutierrez and not Gutierres). If you can prove that it was typographical error,
it will fall under 9048.
