Correcting entries in birth certificates

Dear PAO,
The spelling of my brother’s first name in his marriage certificate is incorrect. He wants to correct this error to prevent future problems. We’ve read in several articles that erroneous entries in birth certificates can be corrected without going to court. Is such remedy also available to correct errors in marriage certificate? Will it require him to stay in the Philippines for a long time? He is already based in the US.                 
Joyce

Dear Joyce,
The remedy you mentioned that is available to correct entries in birth certificates without going to court is prescribed by Republic Act (as amended by RA 10172). Under the law, clerical or typographical error, which refers to mistake committed in the performance of clerical work in writing, copying, transcribing or typing an entry in the civil register may be corrected through an administrative procedure provided such is harmless and innocuous, visible to the eyes or obvious to the understanding, and can be corrected or changed by reference to other existing record or records. This includes misspelled name or misspelled place of birth, mistake in day and month of birth, or the sex of the person (Sec. 2(3), RA 9048, as amended).

In case of problems with the first name, the law also allows change of first name or nickname in case the same is ridiculous, tainted with dishonor or extremely difficult to write or pronounce, or the new first name or nickname has been habitually and continuously used by the person and he has been publicly known by that name, or to avoid confusion (Sec. 4, RA 9048, as amended).

The remedy is widely known to be available in correcting an entry in birth certificate, but the scope of the law is actually wider than that. It can be used to correct clerical or typographical error in an entry found in the civil register. The civil register refers to the various registry books and related certificates and documents kept in the archives of the local civil registry offices, Philippine Consulates and of the Office of the Civil Registrar General (Sec. 2(4), RA 9048, as amended). By reference to the Rules of Court, the entries in the civil register include not only birth, but also marriage, death, legal separation, judgment of annulment or declaration of nullity of marriage, legitimation, adoption, change of name, among others (Sec. 2, Rule 108). Thus, an error in the entry of first name in the marriage certificate can also be administratively corrected, that is, without going to court.

In order to avail of the remedy, your brother need not stay in the Philippines for a long time. In fact, it will not even require him to come back to the Philippines. The petition may be filed abroad. The law states that “Filipino citizens who are presently residing or domiciled in foreign countries may file their petition, in person, with the nearest Philippine Consulates” (Sec. 3, RA 9048, as amended). In this regard, I advise your brother to coordinate with the Philippine Consulate nearest his place of residence to seek assistance in correcting the spelling of his first name in his marriage certificate.

We hope you find our opinion helpful. Please bear in mind that this opinion is based on the facts you narrated and our appreciation of the same. Our opinion may vary should actual facts and circumstances change.

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

Court declaration needed to establish death of ‘absentee’ wife

Dear PAO,
After years of hesitation, I finally found the strength to seek for a CENOMAR from the NSO for my husband. To my dismay, I found out that my husband had been married in 1993. We were married in 2005. When I confronted him about this, he said that he was only with his wife for a week when she left for the province. He said his wife never returned. Since he did not know her relatives, he really had no one to ask of her whereabouts. Is our marriage valid? Please enlighten me on the matter. Thank you.
Katrina

Dear Katrina,
Our laws provide that a marriage which has been contracted during the subsistence of a previous marriage is considered null and void, unless the prior spouse has been declared as presumed dead by the court. Article 41 of the Family Code states:

“Article 41. A marriage contracted by any person during the subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present had a well-founded belief that the absent spouse was already dead. In case of disappearance where there is danger under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient.

For the purposes of contracting the subsequent marriage under the preceding paragraph, the spouse present must institute a summary proceeding as provided for in this Code for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse.”

Therefore, in order for your husband’s first wife to be validly presumed dead and for your marriage to be considered as a valid subsequent marriage, the following must be present: (1) The absent spouse has been missing for four consecutive years or two consecutive years if the disappearance occurred where there is danger of death under the circumstances laid down in Article 391 of the Civil Code; (2) The present spouse wishes to remarry; (3) The present spouse has a well-founded belief that the absentee is dead; and (4) The present spouse files a summary proceeding for the declaration of presumptive death of the absentee (Republic vs. Nolasco, G.R. No. 94053, 17 March 1993, 220 SCRA 20). The belief that the absent spouse is dead must also be “the result of proper and honest to goodness inquiries and efforts to ascertain the whereabouts of the present spouse and whether the absent spouse is still alive or is already dead” (Republic vs. Court of Appeals and Alegro, 513 Phil. 391, 2005).

In order for your marriage to be valid, your spouse must have obtained an order from the court declaring his first wife as presumptively dead. Even if your husband has reason to believe that his wife is dead, he still has to go to court to have her declared presumptively dead. The validity of your marriage will depend on this.

In addition, without this judicial declaration, you and your spouse may even be prosecuted for bigamy under the Revised Penal Code for contracting a subsequent marriage during the subsistence of a prior valid marriage.

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

Identity of paramour needed in adultery complaint

Dear PAO,

I found out that my wife has a boyfriend. We had a big fight when I learned about this. The next day she ran away taking all the money in our safety box and some pieces of my jewelry. I am really mad about what she did and I want her to suffer in jail for cheating on me and getting all the valuables that I have mentioned. What case could I file against her and how do I start the process?             
Mr. M.D.

Dear Mr. M.D.,
As to the infidelity of your wife, the pertinent provisions of Article 333 of the Revised Penal Code provides that “Adultery is committed by any married woman who shall have sexual intercourse with a man not her husband and by the man who has carnal knowledge of her, knowing her to be married, even if the marriage be subsequently declared void.” In order for a complaint for adultery to succeed, it is important that you know, first, the identity of your wife’s paramour and you should have pieces of evidence sufficient to prove that your wife had sexual intercourse with her paramour. A complaint for adultery is initiated by the filing of a complaint-affidavit or sinumpaang-salaysay ng pagrereklamo with the Office of the Prosecutor having jurisdiction of the place where the sexual intercourse was committed.

A complaint for the crime of theft is likewise initiated by the filing of complaint-affidavit or sinumpaang-salaysay ng pagrereklamo with the Office of the Prosecutor having jurisdiction of the place where the personal property was stolen. However, you can only file a civil case and not a criminal complaint for theft against your wife for taking the money in the safety box and some pieces of your jewelry because Article 332 of the Revised Penal Code, states that “no criminal, but only civil liability shall result from the commission of the crime of theft, swindling, or malicious mischief committed or caused mutually by the following persons:

Spouses, ascendants and descendants, or relatives by affinity in the same line;

The widowed spouse with respect to the property which belonged to the deceased spouse before the same shall have passed into the possession of another; and

Brothers and sisters and brothers-in-law and sisters-in-law, if living together. ”

We hope that we have answered your queries. Our legal opinion may vary if other facts are stated 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