April 5, 2016 Wrap Up

Rule 108Cancellation or Correction of Entries in the Civil Registry

Like Rule 103, it has also been modified by REPUBLIC ACT NO. 9048 (March 22, 2001) 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 THIS PURPOSE ARTICLES 376 AND 412 OF THE CIVIL CODE OF THE PHILIPPINES.

Republic vs. Mercadera defines what correction means. To correct, it presupposes a certain error. That is why it is defined as to make or set right to remove a false or error from. If there is no error, then there is no basis to correct it.

Now, aside from the error, what may be corrected would be under RA 9048 are clerical error, not substantial errors. The law also allows the change of first name. If you want to change your surname, go to Rule 103. It cannot be done administratively under Rule 108.

These are some of the amendments introduced by this law to these rules.

RA9048, 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.

Rule 9048 Rule 108Clerical or Substantial changes

typographical errors and change of first name or nickname

i.e. affects civil status, citizenship, nationality and Cancellation/ correction of substantial errors

Summary procedure Adversarial proceeding i.e. opposing parties, as distinguished from ex parte application, legal warning, opportunity to contest

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 Court of First Instance 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.

It is important that you should implead the required parties to the petition. Who are these parties? The Civil Registrar is the indispensable party. Failure to implead the civil registrar

would be fatal to the action. This was ruled in Republic vs. Cagandahan.

In this case, although there was failure to implead the Civil Registrar, the petitioner nevertheless furnished a copy to the local registrar. So the SC relaxed the rule as the purpose of the law was already served by serving copy with the local registrar.

Who else? All persons who have claims or interests which would be affected by the correction. So for instance, if you want to correct the name of the father, you have to implead the children that would be affected. So you have to be conscious with that.

Who else? All possible parties that can be considered as indispensable parties.

Failure to implead would result to the dismissal of the petition.

In the case of Labayo-Rowe vs. Republic, the petition involved the civil status and filiation of the person. Very substantial! It is not just mere typographical error. Failure to implead would not vest the court with jurisdiction. The judgment rendered by the court is considered void. Include not only the recognized father, but also the child itself, and all persons who are deemed affected to make the petition adversarial.

In Republic vs. Barco, the petitioners here had a child, the name was sought to be corrected. The mum filed a petition with the conformity of the father to correct the birth record of their daughter to the dad’s surname. The problem is, the father also had another illegitimate daughter who was not included as a party. Is the illegitimate daughter represented by her mother an indispensable party? The SC said the illegitimate party is one of the parties mentioned in Sec. 3 of Rule 108. Her successional rights would be affected if the

other daughter would be named after the father.

But the SC ruled that the failure was not fatal as to the compliance with Sec. 4 of Rule 108.

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.

Even though Barco was not impleaded in the petition, the defect was cured by compliance with Sec. 4, Rule 108, which requires notice by publication. The purpose of this section is to bind the whole world to the subsequent judgment on the petition. The sweep of the decision would cover even parties who should have been impleaded under Sec. 3, Rule 108, but were inadvertently left out.

A petition for correction is an action in rem, an action against a thing and not against a person. The decision on the petition binds not only the parties thereto but the whole world. It is validated essentially through publication which serves as a notice to the whole world that the proceeding has for its object to bar indefinitely all who might be minded to make an objection of any sort against the right sought to be established.

In the case of Ceruila vs. Delantar, what happened here is that Maria Roslyn Telin Delantar was the child victim in the rape case involving Romeo Jalosjos. After she was

involuntarily committed to the care and custody of the DSWD, a petition for the cancellation of her simulated birth certificate was filed by spouses Platon and Librada Ceruila, without impleading her or DSWD. Publication was made and summons was sent to the Civil Registrar but not to Rosilyn. The published petition may interpose his/her comment or opposition thereto on or before the scheduled hearing. Valid?

Did the publication cure the failure to implead and serve notice on Rosilyn? NO

It is not only the civil registrar but also all persons who have or claim any interest which would be affected by a proceeding concerning the cancellation or correction of an entry in the civil register must be made parties thereto. As enunciated in Republic v. Benemerito, 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. Here, it is clear that no party could be more interested in the cancellation of Rosilyn's birth certificate than Rosilyn herself. Her filiation, legitimacy, and date of birth are at stake.

It cannot be said that this is just mere inadvertence since the the birth certificate was already attached and the very child named therein was not impleaded.

Now, in Republic vs. Kho, what happened?

The birth certificates of minor children were sought to be corrected to, among others, correct the mother’s name from Maribel to Marivel and the date of marriage. Likewise, birth records of Kho siblings were also sought to be corrected to change the citizenship of their mother (Epifania) from Chinese to Filipino and to delete the word “married.” Epifania as well as Marivel were not impleaded nor served notice.

Held: Publication of the order of hearing under Section 4 of Rule 108 cured the failure to implead an indispensable party citing Barco vs. CA.

Bakit pa-iba iba ang Supreme Court? There are several circumstances that the Court considered.

There is no dispute that the trial court's Order setting the petition for hearing and directing any person or entity having interest in the petition to oppose it was posted as well as published for the required period; that notices of hearings were duly served on the Solicitor General, the city prosecutor of Butuan and the local civil registrar; and that trial was conducted on January 31, 2002 during which the public prosecutor, acting in behalf of the OSG, actively participated by cross-examining Carlito and Epifania.

It may not be amiss to mention, however, that during the hearing on January 31, 2002, the city prosecutor who was acting as representative of the OSG did not raise any objection to the non-inclusion of Marivel and Carlito's parents as parties to the proceeding.

Parenthetically, it seems highly improbable that Marivel was unaware of the proceedings to correct the entries in her children's birth certificates, especially since the notices, orders and decision of the trial courtwere all sent to the residence she shared with Carlito and the children.

Date of marriage of Carlito and Marivel, their certificate of marriage25 shows that indeed they were married on January 21, 2000, not on April 27, 1989.

Explaining the error, Carlito declared that the date "April 27, 1989" was supplied by his helper, adding that he was not married to Marivel at the time his sons were born because his previous marriage was annulled only in

1999. Given the evidence presented by respondents, the CA observed that the minors were illegitimate at birth, hence, the correction would bring about no change at all in the nature of their filiation.

We also have the case of Republic vs. Lusagnay-Uy. We have here the Republic questioning the decision rendered in favor of Anita Sy. She is a Chinese citizen and a legitimate child of Sy Ton and Sotera Lusagnay. She filed a petition for correction of her first name and surname, her status from legitimate to illegitimate and her citizenship from Chinese to Filipino. She, however, only impleaded and notified the Local Civil Registrar and failed to implead and notify her parents and siblings.

The Supreme Court held that the fact that the notice of hearing was published in a newspaper of general circulation and notice thereof was served upon the State will not change the nature of the proceedings taken. A reading of Sections 4 and 5, Rule 108 of the Rules of Court shows that the Rules mandate two sets of notices to different potential oppositor --- one given to the persons named in the petition and another given to other persons who are not named in the petition but nonetheless may be considered interested or affected parties. Summons must, therefore, be served not for the purpose of vesting the courts with jurisdiction but to comply with the requirements of fair play and due process to afford the person concerned the opportunity to protect his interest if he so chooses.

It is clear from the foregoing discussion that when a petition for cancellation or correction of an entry in the civil register involves substantial and controversial alterations, including those on citizenship, legitimacy of paternity or filiation, or legitimacy of marriage, a strict compliance with the requirements of Rule 108 of the Rules of Court is mandated. If the entries in the civil register could be corrected or changed through

mere summary proceedings and not through appropriate action wherein all parties who may be affected by the entries are notified or represented, the door to fraud or other mischief would be set open, the consequence of which might be detrimental and far reaching.

Cases where the failure to implead and notify the affected or interested parties may be cured by the publication of the notice of hearing:

1. earnest efforts were made by petitioners in bringing to court all possible interested parties; (Case of Barco)

2. where the interested parties themselves initiated corrections proceedings;

3. when there is no actual or presumptive awareness of the existence of the interested parties; or (Case of Barco)

4.when a party is inadvertently left out.

Only in these instances you can say that the failure to implead the parties would be excusable.

So what is the form of the petition? It must be verified and therein attached is the certificate of non-forum shopping.

So where do you file it? It should be filed in the RTC of the province where the local civil registry is located.

So if you’re in Davao and your record is registered in Cebu, you file it in the RTC of Cebu because you need to implead the LCR.

Going through the cases, you’ll see that Rule 108 has a lengthy history.

For correction of clerical or innocuous errors as early as 1954, the SC decided in the case of Ty Kong Tin vs. Republic that the nature of the correction of clerical or innocuous errors under Rule 108 proceedings is summary in nature for correction of clerical, typographical errors lang.

If the proceeding is for correction of substantial errors affecting civil status, citizenship or nationality of a party, then it is adversarial. That was ruled in the landmark case of Republic vs. Valencia, it is no longer summary but adversarial if the correction sought is substantial errors.

However, with the advent of RA 9048 as well as RA 10172, Congress had taken out the Summary Proceeding from R108 because typographical or clerical error is now removed from judicial proceedings under R108 and is now vested in the LCR under the administrative correction of clerical errors.

What may be changed or corrected?

Article 407 Civil Code: Acts, events and judicial decrees concerning the civil status of persons shall be recorded in the civil register.

Act 408 Civil Code: (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.

Another interesting case is Tan Co vs. Civil Register of Manila.

What happened here is that the children were born to a Chinese father. Obviously, their birth records would show that their father is a Chinese. However, after they were born, their father became a naturalized Filipino citizen. So it is an after-birth event. Is that subject to correction?

The SC said yes. The petitioner’s recourse to Rule 108 of the Rules of Court, as amended, is appropriate. Under Article 412 of the New Civil

Code, no entry in a civil register shall be changed or corrected without a judicial order. The law does not provide for a specific procedure of law to be followed. But the Court approved Rule 108 of the Rules of Court to provide for a procedure to implement the law. The entries envisaged in Article 412 of the New Civil Code are those provided in Articles 407 and 408 of the New Civil Code.

Specific matters covered by the said provision include not only status but also nationality. The acts, events or factual errors envisaged in Article 407 of the New Civil Code include even those that occur after the birth of the petitioner. However, in such cases, the entries in the certificates of birth will 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.

To correct simply means to make or set aright; to remove the faults or error from. To change means to replace something with something else of the same kind or with something that serves as a substitute. Article 412 of the New Civil Code does not qualify as to the kind of entry to be changed or corrected or distinguished on the basis of the effect that the correction or change may be. Such entries include not only those clerical in nature but also substantial errors. After all, the role of the Court under Rule 108 of the Rules of Court is to ascertain the truths about the facts recorded therein.

So it actually falls under the enumeration of Art. 408(10) Naturalization.

SPOTLIGHT MOMENT ABOUT CLIENTS GAINED FROM AVID VIEWERS OF HER SUNDAY MORNING SHOW.

Now, we will discuss if Rule 108 shall apply on change of gender. The Supreme Court, in the

case of Republic vs. Cagandahan, ruled on the question on whether or not Rule 108 allow change of sex or gender in the birth certificate by reason of Congenital Adrenal Hyperplasia (CAH) which is a condition where persons thus afflicted possess both male and female characteristics.

Yes. 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.

Ultimately, we are of the view that where the person is biologically or naturally intersex the determining factor in his gender classification would be what the individual, like respondent, having reached the age of majority, with good reason thinks of his/her sex. Respondent here thinks of himself 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 persons makes the gender classification at birth inconclusive. It is at maturity that the gender of such persons, like respondent, is fixed.

This was before RA 10172 that took effect last January 2013 which now allows changing the sex provided there is no sex reassignment. In this case, the petitioner is a hermaphrodite. It just so happens that as he grew up, yung nag manifest na dominant sex niya iba doon sa na-register sa kanyang birth record. SC said that is allowed for correction because there was no reassignment. But had Cagandahan petition for his birth record after the enactment of RA 10172, then that would have been entertained kasi wala namang sex reassignment.

Now eto ngayon, in the recent case of Republic vs. Olaivar decided in 2014, here Olaivar wanted to cancel all entries in the white portion of the alleged contract entered into during a

civil wedding. The reason is that di naman talaga siya nagpakasal.

She just found out that meron nap ala marriage contract at kasal na pala siya sa isang Taiwanese or Korea. So pina-cancel niya. So effect of that petition if the nullification of marriage. Is that allowed?

Yes, that is allowed since wala naman talagang kasal. But as to the nullification, to be effected, must be supported by proof or evidence.

So is this now an exception to the rule that Rule 108 may not be used to determine the nullity of marriage?

The Supreme Court said no. Rule 108 cannot be availed of to nullify the marriage. That is the rule enunciated in the case of Braza vs. City Civil Register.

The issue here is WON the petition for correction of entry may include a prayer for declaration of nullity of marriage and whether it DNA testing to determine paternity and filiation is allowed.

SC said NO. Petition for Correction of Entries prays as follows: (1) the correction of the entries in Patrick's birth record with respect to his legitimation, the name of the father and his acknowledgment, and the use of the last name "Braza";

2) a directive to Leon, Cecilia and Lucille, all surnamed Titular, as guardians of the minor Patrick, to submit Parick to DNA testing to determine his paternity and filiation; and

3) the declaration of nullity of the legitimation of Patrick as stated in his birth certificate and, for this purpose, the declaration of the marriage of Lucille and Pablo as bigamous.

In a special proceeding for correction of entry under Rule 108 (Cancellation or Correction of Entries in the Original Registry), the trial court

has no jurisdiction to nullify marriages and rule on legitimacy and filiation.

Rule 108 of the Rules of Court vis a vis Article 412 of the Civil Code charts the procedure by which an entry in the civil registry may be cancelled or corrected. The proceeding contemplated therein may generally be used only to correct clerical, spelling, typographical and other innocuous errors in the civil registry. 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.

However, the exact opposite happened in the case of Concepcion vs. CA.

Can judicial recognition of foreign divorce extend to the cancellation entry (of marriage) in the Local Civil Registry? No. A petition for 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.

Must separate proceedings be instituted for recognition of foreign of foreign divorce decree and for cancellation of entry under Rule 108? No. 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.

Foreign divorce decree may be judicially recognized under Rule 108.

Provided the basic jurisdictional requirements under Rue 108 of the Rules of Court are complied with, i. e, verified petition filed with the RTC of the province where the corresponding civil registry is located, the civil registrar and all persons who have or claim any interest are made parties to the proceeding, and publication of the time and place for hearing in a newspaper of general circulation.

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.

If your ultimate goal is to cancel the marriage certificate by virtue of the foreign divorce decree, you file a petition under Rule 108 with a prayer for the court to recognize the foreign judgment. The foreign decree of divorce. You simply comply with the basic jurisdictional requirements: Publication, proof of foreign law, proof of foreign decree, proof of jurisdiction of foreign court that granted the divorce, etc. Same as reprobate proceedings in foreign country.

So when the court receives the petition under Rule 108, what will happen?

Upon filing of the petition, court shall:

Issue an order fixing the time and place of hearing

Cause service of notice on the persons named in the petition

Direct publication of the notice once a week for 3 consecutive weeks in a

newspaper of general circulation in the province (Section 4, Rule 108)

So in the case of Alba vs. CA, here Rogelio Alba had all entries cancelled that the parents appearing in the birth certificate are not married, that the records are false. He impleaded the RoD and the mother’s child.

Rosendo Herrera petitioned for cancellation of entries in the birth record of Rosendo Alba Herrera, Jr. i.e, (1) surname Herrera; (2) name of Rosendo as father, (3) date of marriage of parents, for being false. He impleaded the LCR, Armi (the mother) and “all persons who have a claim or any interest in the petition.” Petition, not being opposed by the OSG, was granted. Three years later, Armi petitioned for the annulment of judgment on the ground that she was not notified of Rosendo’s petition as it indicated her wrong address.

Here you have a situation where a person who was named the father of the child in the birth record was the one who filed a petition for the cancellation of entries in that birth record.

He claimed that his name indicating to be the father was falsely made and the date of marriage with the mother was also false and that he was not the father. He was impugning the validity of the birth record where his name appears as the father.

Because it was unopposed, the petition was granted. The mother came to know about it later and petitioned for the annulment of judgment on the ground that she was not notified of the petition because the petition indicated her old address.

Held: In a proceeding in rem or quasi in rem, jurisdiction over the person of the defendant is not a prerequisite to confer jurisdiction on the court, provided that the latter has jurisdiction over the res. Jurisdiction over the res is acquired either (a) by the seizure of the

property under legal process, whereby it is brought into actual custody of the law; or (b) as a result of the institution of legal proceedings, in which the power of the court is recognized and made effective.

The service of summons or notice to the defendant is not for the purpose of vesting the court with jurisdiction but merely for satisfying the due process requirements.

How was jurisdiction vested?

The filing with the trial court of the petition for cancellation vested the latter jurisdiction over the res. Substantial corrections or cancellations of entries in civil registry records affecting the status or legitimacy of a person may be effected through the institution of a petition under Rule 108 of the Revised Rules of Court, with the proper Regional Trial Court.

Being a proceeding in rem, acquisition of jurisdiction over the person of petitioner is therefore not required in the present case. It is enough that the trial court is vested with jurisdiction over the subject matter.

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.

Who may oppose?

Civil Registrar Any person having or claiming any

interest in the entry sought to be cancelled or corrected

When to oppose?

Within 15 days from notice of petition or from the last date of publication

Even if what was sought was the correction of the nationality and civil status of petitioners minor’ children as stated in the records, i.e. “Chinese” to “Filipino”, “legitimate” to “illegitimate” which are not mere clerical errors, such may be corrected as long as R108, Secs. 3-5 are complied with, and the aggrieved parties have availed themselves of the appropriate adversary proceedings

Petition for correction is an action in rem

Entries in Birth certificates relating to citizenship of the father from “Chinese” to “Filipino” allowed under CA 473, Sec. 15 (extending Philippine citizenship to minor children of those naturalized under LOI 270)

Sec. 6. Expediting proceedings. The court in which the proceeding 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.

Now let’s go to correction clerical errors provided under RA 9048 and RA 10172.

RA 9048 amended Articles 376 and 412 of the Civil Code. RA 10172, on the other hand, amended Sections 1, 2, 5 and 8 of RA 9048 to include administrative correction of clerical errors in the day and month of birth and in the gender, provided that there is no sex change involved.

Both of these laws provide for administrative correction of clerical errors.

Who may correct clerical errors?

1. Concerned city/municipal registrar or (Sec 1, RA 9048)

2. Consul general (Sec 1, RA 9048)3. Clerk of the Sharia Court in his capacity

as District or Circuit Registrar of Muslim Marriages, Divorces, Revocation of Divorces and Conversions (Rule 1, IRR of Rule 9048 A.O. No. 1, Series of 2001)

Scope of Administrative Correction under RA 9048

1. First Nameo A name or nickname given to a

person which may consist of one or more names in addition to middle and last names (Sec 2(6))

2. Clerical or typographical errorso 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. (Sec 2 (3))

Scope of Administrative Correction under RA 10172

1. Clerical or typographical error/mistake in the entry

Only the day and month of the date of birth. If it involves the year itself, it will affect your age. It is no longer allowed for administrative correction. You have to go to court. That is not covered by RA 10172.

Sex or gender of person2. Clerical error that is patently clear

Can you consider an error pertaining to nationality, age, status, or sex as merely clerical/typo? Not under RA 9048. But under RA 10172, sex of persons are now included.

RA 9048 now governs the change of first name. 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.

It likewise lays down the corresponding venue, form, and procedure. In sum, the remedy and the proceedings regulating change of first name are primarily administrative in nature, not judicial. (Silverio vs. Republic)

In Lee vs. CA, the Supreme Court explained that RA 9048 is Congress' response to the confusion wrought by the failure to delineate as to what exactly is that so-called summary procedure for changes or corrections of a harmless or innocuous nature as distinguished from that appropriate adversary proceeding for changes

or corrections of a substantial kind. For we must admit that though we have constantly referred to an appropriate adversary proceeding, we have failed to categorically state just what that procedure is.

Republic Act No. 9048 now embodies that summary procedure while Rule 108 is that appropriate adversary proceeding. Be that as it may, the case at bar cannot be decided on the basis of Republic Act No. 9048 which has prospective application. Hence, the necessity for the preceding treatise.

What are the grounds for the change of first name?

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.

Nota Bene: Sex reassignment is an invalid ground.

In Silverio vs. Republic, 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. 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.

Who may file the petition?

For change of name, clerical error in day and month of birth, and other clerical errors:

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 the petition (Sec 3, RA 9048, Rule 3 IRR)

When a person is a minor or physically and mentally incapacitated, the petition may be filed on his behalf by his spouse, or any of his children, parents, brothers, sisters, grandparents, guardians or persons duly authorized by law.

Person having direct and personal interest

o Owner of the record; or - Owner’s spouse, children, parents, brothers, sisters, grandparents, guardians or persons duly authorized by law; or - Owner of the document sought to be corrected. (Sec 3, RA 9048; Rule 3, IRR)

o Person affected by the error (Rule 3.2 IRR) Hindi pwede ang spouse, anak, relative, grandparents, etc.

What is the form of the petition?

1. In the form of an affidavit: subscribed and sworn to before any person authorized by the law to administer oaths. - 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.

2. State the particular erroneous entry or entries, which are sought to be corrected and/or the change sought to be made. (Sec 5, RA 9048; Rule 8, IRR)

What is the manner of filing?

It is Personal filing as provided under Sec 3, RA 9048; Rule 8 IRR

Where should petition be filed?

1. Change of first name, error in day and month of birth

Resident petitioner With the LCRO of the city or municipality or with the Office of the Clerk of the Sharia Court, as the case may be, where the record is registered (Sec 3, RA 9048; Rule 4, IRR)

Migrant petitioner (transferred residence) with the petition receiving civil registrar of the place where the migrant petitioner is residing or domiciled.

Non-resident petitioner (residing abroad) With the nearest Philippine Consulate for persons whose civil registry record was registered in the Philippines, or in any Philippine Embassy

2. Error in sex With the C/MCR of the city or

municipality or the Philippine Consulate, as the case may be, where the record is registered (Rule 4.2 IRR)

What are the attachments to the petition?

1. Certified machine copy of the certificate containing the alleged erroneous entry or entries

2. Not less than 2 public or private documents upon which the correction shall be based

3. Notice and Certificate of Posting - Certified machine copy of Official Receipt of the filing fee - Other documents as may be required by the

City/Municipal Civil Registrar (C/MCR) (Sec 5, RA 9048, Rule 8, IRR)

What are the additional attachments for the change of name (RA 9048, Rule 8, 8.2 IRR)?

1. Clearance or certification that owner of document has no pending administrative, civil or criminal case, or no criminal record, by the following:

a. Employer, if employedb. National Bureau of

Investigationc. Philippine National Police

2. Affidavit of publication from the publisher and a copy of the newspaper clipping. In petition for change of First Name, publication in newspaper of general circulation is required. In other cases, posting in conspicuous public places is required.

What are the additional attachments for the change of name (RA 10172)?

1. Medical records2. Baptismal certificate or other

documents issued by religious authorities

3. For correction of sex – Certification by a government physician attesting to the fact of non-sex transplant or non-sex change

What are the posting and publication requirements?

For Posting Requirement

i. Resident Petitionera. In a conspicuous place provided

for that purposeb. For 10 consecutive days after

favorable assessmentii. Migrant Petitioner

a. Office of the PRCR for 10 consecutive days

b. Office of the RKCR for another 10 days

iii. Non-resident Petitionera. Where petition is filed and

where record is kept

For Publication Requirement

i. Resident petitionera. Once a week for 2 successive

newspaper circulation weeks in of general

ii. Migrant Petitionera. Publication is made in a

national newspaperiii. Non-resident Petitioner

a. File it abroad, 2 publications where petition is filed and where record is kept

What are the duties of the Civil Registrar?

1. Examine the petition and conduct investigation

2. Post petition in a conspicuous place for 10 consecutive days after finding it and its supporting documents sufficient in form and substance

3. Act on the petition and render decision not later than 5 working days after completion of posting and/or publication requirement

4. Transmit copy of decision together with records the proceedings to the Office of Civil Registrar General within 5 working days after the date of decision

5. Perform such other duties and functions as may be necessary to carry out the provisions of RA 9048 (Sec 6, RA 9048; Rule 10, IRR)

The Decision shall become final and executory if not impugned by the Civil Registry General. Changes shall be reflected in the birth certificate by way of marginal annotation.

Final decision approving change of first name sufficient basis in changing the first name of the same person in his other affected records without need for filing a similar petition.

Petitioner needs only to file a request with the concerned civil registrar to make such marginal annotation attaching thereto a copy of the decision (Rule 12 IRR).

What are the grounds for the denial of the petition?

1. The supporting documents are not authentic and genuine.

2. The C/MCR has personal knowledge that a similar petition is filed or pending in court or in any other

3. LCRO.4. The petition involves the same entry in

the same document, which was previously corrected or changed under this Order.

5. The petition involves the change of the status, sex, age or nationality of the petitioner or of any person named in the document.

6. Such other grounds as the C/MCR may deem not proper for correction.

7. In the case of petition for change of first name or nickname, any of the grounds provided in Sec 4 of RA 9048 are not present in addition to the abovementioned (Rule 5, 5.8 IRR).

What are the remedies upon denial of the petition?

1. Appeal the decision to the CRG within ten (10) working days from the receipt of the decision on the following grounds:

Newly discovered evidence which shall materially affect, alter, modify or reverse the decision of the C/MCR

Denial of the C/MCR is erroneous or not supported with evidence

Denial of the C/MCR is done with grave abuse of authority or discretion

CRG shall render a decision within 30 calendar days after receipt of the appeal and shall furnish the C/MCR, CG or D/CR a copy of the decision not later than 10 working date after date of decision

2. File the appropriate petition with the proper court

May be filed even beyond period to appeal (Rule 13 and 14 IRR)

When can decision be impugned?

Within 10 working days from receipt of decision granting decision

Who may impugn the decision?

The Civil Registrar General (CRG)

What is the effect of failure to impugn the decision?

1. File MR within 15 working days from receipt of decision on the ground of newly discovered evidence

CRG shall resolve the MR within 30 working days, thereafter the decision becomes final and executory

2. File separate petition in court

In Re: Judicial Audit RTC 67 AM No 06-7-414-RTC, October 19, 2007

May the court apply RA 9048 for petitions for name change or correction of entries, without hearing and publication requirements?

No. Since R.A. No. 9048 refers specifically to the administrative summary proceeding before the local civil registrar it would be inappropriate to apply the same procedure to petitions for the correction of entries in the civil registry before the courts. In other words, you do not apply the procedure under RA 9048 for proceedings under Rule 108 since it is judicial.

The procedures are different. You cannot use RA 9048 procedure under a petition for correction under Rule 108. The promulgation of rules of procedure for courts of justice is the exclusive domain of the Supreme Court.