Dear PAO,
I would like to inquire whether my marriage to my wife is valid
considering that there is a discrepancy in our marriage certificate. My
wife’s name is “Mary Ann” but her name is recorded in our marriage
certificate as “May Ann”. To my knowledge, she has not noticed this
error yet and I would like to use this as a ground to invalidate my
marriage with her if it is possible. I hope your office can give me an
advice. More power and God bless!
Rap-rap
Dear Rap-rap,
An error in the spelling of your wife’s name in your marriage
certificate cannot and will not invalidate your marriage. The validity
of a marriage is not dependent on the mere error on the spelling of the
names of the parties in a marriage contract. The validity of a marriage
is primarily based on specific legal requirements set by law. These
requirements are called the essential and formal requisites of marriage.
The absence of any of these requirements may result to a void ab intio
marriage (Article 4, Family Code of the Philippines).
For your reference, the following are the essential and formal
requisites of marriage as stated in the Family Code of the Philippines:
“Art. 2. No marriage shall be valid, unless these essential requisites are present:
(1) Legal capacity of the contracting parties who must be a male and a female; and
(2) Consent freely given in the presence of the solemnizing officer. (53a)
Art. 3. The formal requisites of marriage are:
(1) Authority of the solemnizing officer;
(2) A valid marriage license except in the cases provided for in Chapter 2 of this Title; and
(3) A marriage ceremony which takes place with the appearance of the
contracting parties before the solemnizing officer and their personal
declaration that they take each other as husband and wife in the
presence of not less than two witnesses of legal age. (53a, 55a)”
In addition to these requisites, the law also provides other bases for a
possible declaration of nullity of marriage which are found in Articles
35, 36, 37, 38, 45 and 53 of the Family Code of the Philippines, none
of which however mentions typographical errors as a ground for
nullification of marriage. Thus, please be reminded that while you may
confirm if the other grounds for nullity of marriage apply to your case,
the said error in the spelling of your wife’s name has no effect on the
validity of your marriage.
Lastly, since the error in the spelling of your wife’s name in your
marriage certificate is obvious to the understanding and can be
corrected by reference to other existing records, it is considered to be
merely a clerical error which can be remedied by filing a petition for
correction of entry before the local civil registry office where your
marriage certificate was registered.
Again, we find it necessary to mention that this opinion is solely
based on the facts you have narrated and our appreciation of the same.
The opinion may vary when the facts are changed or elaborated.
We hope that we were able to enlighten you on the matter.
Editor’s note: Dear PAO is a daily column of the Public
Attorney’s Office. Questions for Chief Acosta may be sent to
dearpao@manilatimes.net
source: Manila Times Column of Atty Persida Acosta
Wednesday, December 25, 2013
Tuesday, December 10, 2013
Court order not needed for civil registrar to correct clerical error in birth certificate
Dear PAO,
I would like to ask if there is any probability that I can change my surname into my father’s surname. I am now using my mother’s surname. When I was born they were not yet married, because my father had an ongoing petition from my grandparents in the USA. When I was two years old, Papa was diagnosed with cancer and decided to marry my mother.
The problem is, my mom’s surname in their marriage contract was misspelled as “Villacorta” instead of “Villanueva”. In my birth certificate though, my father was able to sign as my father. I am really hoping that you will help me with my inquiry. If ever there is a way to do this, may I know the procedure? Thank you.
Sincerely,
OPZ
Dear OPZ,
Based on your letter, four facts may be established: First, you were born before your parents were married, and the only reason your parents were not yet married was because your father had an ongoing petition in the United States of America (USA). Second, your father was able to acknowledge you as his child in your birth certificate. Third, soon after, your parents eventually got married. Fourth, your mother’s surname was misspelled in the marriage contract.
We strongly advise that your mother should have her surname corrected in her marriage certificate, so there will be no question when you apply for the use of your father’s surname. Republic Act (R.A.) No. 9048 authorizes the city or municipal civil registrar to correct a clerical or typographical error in an entry without need of a judicial order. If it is evident in their marriage certificate that the misspelling was clearly a typographical or clerical error, then she can avail of this remedy. Otherwise, she must file a petition in court for the correction of her surname.
Since your parents had no legal impediment at the time of your birth and they subsequently got married, you are considered as a legitimated child. A legitimated child is similar to a legitimate child, except for the fact that you were born prior to your parents’ marriage. Article 177 of the Family Code defines legitimated children as those “conceived and born outside of wedlock of parents who, at the time of the conception of the former, were not disqualified by any impediment to marry each other…” Therefore, as far as the law is concerned, you were legitimated when your parents got married.
For you to enjoy all the benefits of a legitimated child, including the right to use the surname of your father, the fact of legitimation must be recorded in your certificate of live birth. In order to do this, you must submit the following requirements to the civil registrar where your birth was recorded:
(1) Certificate of Marriage of your parents;
(2) Your Certificate of Live Birth;
(3) Acknowledgment, but you do not need this, as you were acknowledged by your father in your birth certificate; and
(4) Affidavit of legitimation executed by both parents.
Once you submit all the requirements and the civil registrar sees that everything is in order, your original name appearing in your birth certificate shall not be erased or deleted.
Instead, an annotation in the remarks space stating “Legitimated by Subsequent Marriage” indicating the family name which you shall bear because of legitimation shall be written.
We hope that we were able to enlighten you on the matter. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net
source: Manila Times
I would like to ask if there is any probability that I can change my surname into my father’s surname. I am now using my mother’s surname. When I was born they were not yet married, because my father had an ongoing petition from my grandparents in the USA. When I was two years old, Papa was diagnosed with cancer and decided to marry my mother.
The problem is, my mom’s surname in their marriage contract was misspelled as “Villacorta” instead of “Villanueva”. In my birth certificate though, my father was able to sign as my father. I am really hoping that you will help me with my inquiry. If ever there is a way to do this, may I know the procedure? Thank you.
Sincerely,
OPZ
Dear OPZ,
Based on your letter, four facts may be established: First, you were born before your parents were married, and the only reason your parents were not yet married was because your father had an ongoing petition in the United States of America (USA). Second, your father was able to acknowledge you as his child in your birth certificate. Third, soon after, your parents eventually got married. Fourth, your mother’s surname was misspelled in the marriage contract.
We strongly advise that your mother should have her surname corrected in her marriage certificate, so there will be no question when you apply for the use of your father’s surname. Republic Act (R.A.) No. 9048 authorizes the city or municipal civil registrar to correct a clerical or typographical error in an entry without need of a judicial order. If it is evident in their marriage certificate that the misspelling was clearly a typographical or clerical error, then she can avail of this remedy. Otherwise, she must file a petition in court for the correction of her surname.
Since your parents had no legal impediment at the time of your birth and they subsequently got married, you are considered as a legitimated child. A legitimated child is similar to a legitimate child, except for the fact that you were born prior to your parents’ marriage. Article 177 of the Family Code defines legitimated children as those “conceived and born outside of wedlock of parents who, at the time of the conception of the former, were not disqualified by any impediment to marry each other…” Therefore, as far as the law is concerned, you were legitimated when your parents got married.
For you to enjoy all the benefits of a legitimated child, including the right to use the surname of your father, the fact of legitimation must be recorded in your certificate of live birth. In order to do this, you must submit the following requirements to the civil registrar where your birth was recorded:
(1) Certificate of Marriage of your parents;
(2) Your Certificate of Live Birth;
(3) Acknowledgment, but you do not need this, as you were acknowledged by your father in your birth certificate; and
(4) Affidavit of legitimation executed by both parents.
Once you submit all the requirements and the civil registrar sees that everything is in order, your original name appearing in your birth certificate shall not be erased or deleted.
Instead, an annotation in the remarks space stating “Legitimated by Subsequent Marriage” indicating the family name which you shall bear because of legitimation shall be written.
We hope that we were able to enlighten you on the matter. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net
source: Manila Times
Sunday, December 1, 2013
Grounds to declare marriage void
Dear PAO,
I married last July 7, 2011. I was 24 years old at that time, but I was not able to get parental advice from my parents. Also, we did not secure a marriage license. Instead, my wife and I executed an affidavit which states that we have been living together as husband and wife for five years. This is not true because we married less than one year after we met. Can I have my marriage annulled or declared void?
Michael
Dear Michael,
You mentioned two defects in your marriage. The first is lack of parental advice which is required by Article 15 of the Family Code for persons marrying between the ages of twenty-one (21) and twenty-five (25). However, its absence is not a valid cause to have your marriage annulled or declared void. Lack of parental advice is not mentioned in Article 45 of the Family Code which enumerates the grounds for annulment of marriage. Neither is parental advice an essential or formal requisite of marriage, whose absence renders the marriage void ab initio. The rule is settled that every intendment of the law or fact leans toward the validity of the marriage, the indissolubility of the marriage bonds (Sevilla vs. Cardenas, G.R. No. 167684, July 31, 2006). The annulment or declaration of nullity of marriage is only an exception to this rule allowed in certain instances specifically provided by law.
The second defect in your marriage concerns the falsity of the period of cohabitation stated in your affidavit of cohabitation. The general rule is that the future spouses are required to secure a marriage license before their marriage. Without a marriage license, which is a formal requisite of marriage, the marriage would be void. There are exceptions to this rule, one of which is found in Article 34 of the Family Code which states that no marriage license is necessary if the future spouses have lived together as husband and wife for at least five (5) years and without any legal impediment to marry each other. The contracting parties shall state the foregoing facts in an affidavit before any person authorized by law to administer oaths.
It should be pointed out that under this exception, what exempts the future spouses from the requirement of securing a marriage license is not the execution of the affidavit of cohabitation, but rather, the fact of cohabitation for at least five (5) years without legal impediment to marry each other. Its purpose is to avoid exposing the parties to humiliation, shame and embarrassment concomitant with the scandalous cohabitation of persons outside a valid marriage due to the publication of every applicant’s name for a marriage license, which could discourage such persons from legitimizing their status (Niñal v. Bayadog, G.R. No. 133778, March 14, 2000 citing The Report of the Code Commission). The affidavit merely sets forth such fact, which if found false would only be a mere scrap of paper, without force and effect (Republic vs. Dayot, G.R. No. 175581, March 28, 2008).
You mentioned that you married your wife less than one (1) year after you met her. If this is true, then it is impossible to comply with the requirement of 5-year cohabitation. Therefore, the exception does not apply and you are required to secure a marriage license. Because there is none, your marriage is void ab initio. You may file a petition in court to have your marriage declared void.
We hope that we were able to enlighten you on the matter. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
source: Manila Times' Column of Atty. PERSIDA ACOSTA
I married last July 7, 2011. I was 24 years old at that time, but I was not able to get parental advice from my parents. Also, we did not secure a marriage license. Instead, my wife and I executed an affidavit which states that we have been living together as husband and wife for five years. This is not true because we married less than one year after we met. Can I have my marriage annulled or declared void?
Michael
Dear Michael,
You mentioned two defects in your marriage. The first is lack of parental advice which is required by Article 15 of the Family Code for persons marrying between the ages of twenty-one (21) and twenty-five (25). However, its absence is not a valid cause to have your marriage annulled or declared void. Lack of parental advice is not mentioned in Article 45 of the Family Code which enumerates the grounds for annulment of marriage. Neither is parental advice an essential or formal requisite of marriage, whose absence renders the marriage void ab initio. The rule is settled that every intendment of the law or fact leans toward the validity of the marriage, the indissolubility of the marriage bonds (Sevilla vs. Cardenas, G.R. No. 167684, July 31, 2006). The annulment or declaration of nullity of marriage is only an exception to this rule allowed in certain instances specifically provided by law.
The second defect in your marriage concerns the falsity of the period of cohabitation stated in your affidavit of cohabitation. The general rule is that the future spouses are required to secure a marriage license before their marriage. Without a marriage license, which is a formal requisite of marriage, the marriage would be void. There are exceptions to this rule, one of which is found in Article 34 of the Family Code which states that no marriage license is necessary if the future spouses have lived together as husband and wife for at least five (5) years and without any legal impediment to marry each other. The contracting parties shall state the foregoing facts in an affidavit before any person authorized by law to administer oaths.
It should be pointed out that under this exception, what exempts the future spouses from the requirement of securing a marriage license is not the execution of the affidavit of cohabitation, but rather, the fact of cohabitation for at least five (5) years without legal impediment to marry each other. Its purpose is to avoid exposing the parties to humiliation, shame and embarrassment concomitant with the scandalous cohabitation of persons outside a valid marriage due to the publication of every applicant’s name for a marriage license, which could discourage such persons from legitimizing their status (Niñal v. Bayadog, G.R. No. 133778, March 14, 2000 citing The Report of the Code Commission). The affidavit merely sets forth such fact, which if found false would only be a mere scrap of paper, without force and effect (Republic vs. Dayot, G.R. No. 175581, March 28, 2008).
You mentioned that you married your wife less than one (1) year after you met her. If this is true, then it is impossible to comply with the requirement of 5-year cohabitation. Therefore, the exception does not apply and you are required to secure a marriage license. Because there is none, your marriage is void ab initio. You may file a petition in court to have your marriage declared void.
We hope that we were able to enlighten you on the matter. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
source: Manila Times' Column of Atty. PERSIDA ACOSTA
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