Special Proceedings: Rule 103, Rule 108, RA 9048

SPECIAL PROCEEDINGS

Rules 103 & 108; RA 9048

By Olive Cachapero

	RULE 103	RULE 108	RA 9048
Title	Change of name (name which appears in the civil register)	Cancellation or correction of entries in the civil registry	Correct a clerical or typographical error in an entry and/or change of first name or nickname
Nature	{  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	{  Adversarial; {  judicial {  Substantial error	{  Summary; {  administrative; No judicial order necessary {  Clerical/typographical error; change of first name or nickname - changes or corrections of a harmless and innocuous nature
Petitioner	All natural persons regardless of status, including domiciled aliens	Any person interested in any act, event, order or decree concerning the civil status of persons which has been recorded in the civil register	Any person having direct and personal interest in the correction of a clerical or typographical error
Parties		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.	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.
Subject matter	ü  First name, ü  nickname, ü  middle name, ü  surname	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.	i)              clerical or typographical errors and ii)            change of first name or nickname
Venue	1)        RTC of the province in which he resides, or, 2)       in the City of Manila, to the Juvenile and Domestic Relations Court.	RTC of the province where the corresponding civil registry is located.	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.
Contents of Petition or affidavit	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.		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.
Form	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,	a verified petition for the cancellation or correction of any entry relating thereto	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.
Notice, Publication & posting	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.	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.	Sec. 9
Hearing	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.
Oppositor	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.	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.	Non-adversarial
Grounds	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.		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.
Judgment	that such name be changed in accordance with the prayer of the petition.	court may either dismiss the petition or issue an order granting the cancellation or correction prayed for.	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.
Service of judgment	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	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.
Example	Adopted child’s change of surname	Illegitimacy Sex Nationality/citizenship Civil status

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.