CASE DIGEST ON ATIENZA V.

BRILLANTES
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CASE DIGEST ON ATIENZA V. BRILLANTES [243 SCRA 32 (1995)] - F: This is an administrative
complaint filed by Atienza for Gross Immorality and Appearance of Impropriety against J. Brillantes,
Presiding Judge of MTC, Mla. It was alleged in the complaint that Brillantes has been cohabiting w/
Yolanda De Castro (w/ whom Atienza had 2 children) when he (Brillantes) was already married to one
Zenaida Ongkiko w/ whom he has 5 children. xxx Resp. denies having been married to Ongkiko, although
he admits having 5 children w/ her. He alleges that while he and Ongkiko went through a marriage
ceremony, the same was not valid for lack of marriage license. The second marriage bet. the two also
lacked the required license. He claims that when he married De Castro in LA, California, he believed, in
all GF and for all legal intents and purposes, that he was single bec. his first marriage was solemnized
w/o a license.
HELD: Under the FC, there must be a judicial decl. of the nullity of a previous marriage bef. a party
thereto can enter into a 2nd marriage. (Art. 40.) Art. 40 is applicable to remarriages entered into after the
effectivity of the FC regardless of the date of the first marriage. Said art. is given "retroactive effect insofar
as it does not prejudice or impair vested or acquired rights in accordance w/ the NCC or other laws." (Art.
256, FC.) This is particularly true w/ Art. 40 w/c is a rule of procedure. Resp. has not shown any vested
right that was impaired by the application of Art. 40 to his case.
The fact that procedural statutes may somehow affect the litigants' rights may not preclude their
retroactive application to pending actions. The retroactive application of procedural laws is not violative of
any right of a person who may feel that he is adversely affected. The reason is that as a general rule no
vested right may attach to, nor arise from, procedural laws.
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Atienza vs Brillantes 243 SCRA 32

Topic: Retroactive effects of law
SF: An administrative case was filed by herein complainant against Judge Brilliantes of MTC,
Manila. Complainant alleges that he has two children with De Castro who stays in Makati,
Manila in the house he bought and stayed while he is in Manila. Sometime in 1991 he saw
Respondent Judge sleeping on his bed, upon inquiry, he was told by the houseboy that
respondent was cohabiting with De Castro. Complainant further alleged that respondent was
married to a certain Zenaida Ongkiko and begot five children.
In reply respondent alleged that the complainant was not married to De Castro, he also
denied having been married to Zenaida ongkiko, however admitted having five children with
her. He stated that the marriage between him and Ongkiko was not valid since there was no
marriage license and further claimed that when he married De Castro he believed in all good
faith of its intent and purpose.

I: Whether or not Article 40 of the Family Code that required nullity of previous marriage for
purpose of remarriage shall apply?
H: As a general rule provided in Article 4 of the NCC: Laws shall have no retroactive effect,
unless the contrary is provided.
R: Article 40 of the Family Code provides that a Judicial Declaration of Nullity is required
before a party can enter into second marriage however the said Code took effect only on
August 3, 1988 and the marriages that respondent contracted was 1965 and 1991 however
the provisions of this code shall apply regardless of the date of the marriage, besides under
Article 256 of the Family Code, said Article is given retroactive effects in so far as it does
not prejudice or impair vested or acquired rights in accordance with the Civil Code or other
laws this is particularly true with Article 40 which is a rule of Procedure, herein respondent
has not shown any vested rights that was impaired by the application of Article 40 ti his
case.
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SUPREME COURT
Manila
FIRST DIVISION
A.M. No. MTJ-00-1329
March 8, 2001
(Formerly A.M. No. OCA IPI No. 99-706-MTJ)
HERMINIA BORJA-MANZANO, petitioner,
vs.
JUDGE ROQUE R. SANCHEZ, MTC, Infanta, Pangasinan, respondent.
RESOLUTION
DAVIDE, JR., C.J.:
The solemnization of a marriage between two contracting parties who were both bound by a prior
existing marriage is the bone of contention of the instant complaint against respondent Judge Roque
R. Sanchez, Municipal Trial Court, Infanta, Pangasinan. For this act, complainant Herminia BorjaManzano charges respondent Judge with gross ignorance of the law in a sworn Complaint-Affidavit
filed with the Office of the Court Administrator on 12 May 1999.
Complainant avers that she was the lawful wife of the late David Manzano, having been married to
him on 21 May 1966 in San Gabriel Archangel Parish, Araneta Avenue, Caloocan City.1 Four children

were born out of that marriage.2 On 22 March 1993, however, her husband contracted another
marriage with one Luzviminda Payao before respondent Judge.3 When respondent Judge
solemnized said marriage, he knew or ought to know that the same was void and bigamous, as the
marriage contract clearly stated that both contracting parties were "separated."
Respondent Judge, on the other hand, claims in his Comment that when he officiated the marriage
between Manzano and Payao he did not know that Manzano was legally married. What he knew
was that the two had been living together as husband and wife for seven years already without the
benefit of marriage, as manifested in their joint affidavit. 4 According to him, had he known that the
late Manzano was married, he would have advised the latter not to marry again; otherwise, he
(Manzano) could be charged with bigamy. He then prayed that the complaint be dismissed for lack of
merit and for being designed merely to harass him.
After an evaluation of the Complaint and the Comment, the Court Administrator recommended that
respondent Judge be found guilty of gross ignorance of the law and be ordered to pay a fine of
P2,000, with a warning that a repetition of the same or similar act would be dealt with more severely.
On 25 October 2000, this Court required the parties to manifest whether they were willing to submit
the case for resolution on the basis of the pleadings thus filed. Complainant answered in the
affirmative.
For his part, respondent Judge filed a Manifestation reiterating his plea for the dismissal of the
complaint and setting aside his earlier Comment. He therein invites the attention of the Court to two
separate affidavits5 of the late Manzano and of Payao, which were allegedly unearthed by a member
of his staff upon his instruction. In those affidavits, both David Manzano and Luzviminda Payao
expressly stated that they were married to Herminia Borja and Domingo Relos, respectively; and that
since their respective marriages had been marked by constant quarrels, they had both left their
families and had never cohabited or communicated with their spouses anymore. Respondent Judge
alleges that on the basis of those affidavits, he agreed to solemnize the marriage in question in
accordance with Article 34 of the Family Code.
We find merit in the complaint.
Article 34 of the Family Code provides:
No license shall be necessary for the marriage of a man and a woman who have lived
together as husband and wife for at least five 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. The solemnizing officer shall also state
under oath that he ascertained the qualifications of the contracting parties and found no legal
impediment to the marriage.
For this provision on legal ratification of marital cohabitation to apply, the following requisites must
concur:
1. The man and woman must have been living together as husband and wife for at least five
years before the marriage;
2. The parties must have no legal impediment to marry each other;

3. The fact of absence of legal impediment between the parties must be present at the time
of marriage;
4. The parties must execute an affidavit stating that they have lived together for at least five
years [and are without legal impediment to marry each other]; and
5. The solemnizing officer must execute a sworn statement that he had ascertained the
qualifications of the parties and that he had found no legal impediment to their marriage. 6
Not all of these requirements are present in the case at bar. It is significant to note that in their
separate affidavits executed on 22 March 1993 and sworn to before respondent Judge himself,
David Manzano and Luzviminda Payao expressly stated the fact of their prior existing marriage.
Also, in their marriage contract, it was indicated that both were "separated."
Respondent Judge knew or ought to know that a subsisting previous marriage is a diriment
impediment, which would make the subsequent marriage null and void.7 In fact, in his Comment, he
stated that had he known that the late Manzano was married he would have discouraged him from
contracting another marriage. And respondent Judge cannot deny knowledge of Manzanos and
Payaos subsisting previous marriage, as the same was clearly stated in their separate affidavits
which were subscribed and sworn to before him.
The fact that Manzano and Payao had been living apart from their respective spouses for a long time
already is immaterial. Article 63(1) of the Family Code allows spouses who have obtained a decree
of legal separation to live separately from each other, but in such a case the marriage bonds are not
severed. Elsewise stated, legal separation does not dissolve the marriage tie, much less authorize
the parties to remarry. This holds true all the more when the separation is merely de facto, as in the
case at bar.
Neither can respondent Judge take refuge on the Joint Affidavit of David Manzano and Luzviminda
Payao stating that they had been cohabiting as husband and wife for seven years. Just like
separation, free and voluntary cohabitation with another person for at least five years does not
severe the tie of a subsisting previous marriage. Marital cohabitation for a long period of time
between two individuals who are legally capacitated to marry each other is merely a ground for
exemption from marriage license. It could not serve as a justification for respondent Judge to
solemnize a subsequent marriage vitiated by the impediment of a prior existing marriage.
Clearly, respondent Judge demonstrated gross ignorance of the law when he solemnized a void and
bigamous marriage. The maxim "ignorance of the law excuses no one" has special application to
judges,8 who, under Rule 1.01 of the Code of Judicial Conduct, should be the embodiment of
competence, integrity, and independence. It is highly imperative that judges be conversant with the
law and basic legal principles.9 And when the law transgressed is simple and elementary, the failure
to know it constitutes gross ignorance of the law.10
ACCORDINGLY, the recommendation of the Court Administrator is hereby ADOPTED, with the
MODIFICATION that the amount of fine to be imposed upon respondent Judge Roque Sanchez is
increased to P20,000.
SO ORDERED.

Puno, Kapunan, Pardo, and Ynares-Santiago, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 163707

September 15, 2006

MICHAEL C. GUY, petitioner,

vs.
HON. COURT OF APPEALS, HON. SIXTO MARELLA, JR., Presiding Judge, RTC, Branch 138,
Makati City and minors, KAREN DANES WEI and KAMILLE DANES WEI, represented by their
mother, REMEDIOS OANES, respondents.
DECISION
YNARES-SANTIAGO, J.:
This petition for review on certiorari assails the January 22, 2004 Decision 1 of the Court of Appeals in
CA-G.R. SP No. 79742, which affirmed the Orders dated July 21, 2000 2 and July 17, 20033 of the
Regional Trial Court of Makati City, Branch 138 in SP Proc. Case No. 4549 denying petitioner's
motion to dismiss; and its May 25, 2004 Resolution4 denying petitioner's motion for reconsideration.
The facts are as follows:
On June 13, 1997, private respondent-minors Karen Oanes Wei and Kamille Oanes Wei,
represented by their mother Remedios Oanes (Remedios), filed a petition for letters of
administration5 before the Regional Trial Court of Makati City, Branch 138. The case was docketed
as Sp. Proc. No. 4549 and entitled Intestate Estate of Sima Wei (a.k.a. Rufino Guy Susim).
Private respondents alleged that they are the duly acknowledged illegitimate children of Sima Wei,
who died intestate in Makati City on October 29, 1992, leaving an estate valued at P10,000,000.00
consisting of real and personal properties. His known heirs are his surviving spouse Shirley Guy and
children, Emy, Jeanne, Cristina, George and Michael, all surnamed Guy. Private respondents prayed
for the appointment of a regular administrator for the orderly settlement of Sima Wei's estate. They
likewise prayed that, in the meantime, petitioner Michael C. Guy, son of the decedent, be appointed
as Special Administrator of the estate. Attached to private respondents' petition was a Certification
Against Forum Shopping6 signed by their counsel, Atty. Sedfrey A. Ordoez.
In his Comment/Opposition,7 petitioner prayed for the dismissal of the petition. He asserted that his
deceased father left no debts and that his estate can be settled without securing letters of
administration pursuant to Section 1, Rule 74 of the Rules of Court. He further argued that private
respondents should have established their status as illegitimate children during the lifetime of Sima
Wei pursuant to Article 175 of the Family Code.

The other heirs of Sima Wei filed a Joint Motion to Dismiss8 on the ground that the certification
against forum shopping should have been signed by private respondents and not their counsel. They
contended that Remedios should have executed the certification on behalf of her minor daughters as
mandated by Section 5, Rule 7 of the Rules of Court.
In a Manifestation/Motion as Supplement to the Joint Motion to Dismiss,9 petitioner and his co-heirs
alleged that private respondents' claim had been paid, waived, abandoned or otherwise extinguished
by reason of Remedios' June 7, 1993 Release and Waiver of Claim stating that in exchange for the
financial and educational assistance received from petitioner, Remedios and her minor children
discharge the estate of Sima Wei from any and all liabilities.
The Regional Trial Court denied the Joint Motion to Dismiss as well as the Supplemental Motion to
Dismiss. It ruled that while the Release and Waiver of Claim was signed by Remedios, it had not
been established that she was the duly constituted guardian of her minor daughters. Thus, no
renunciation of right occurred. Applying a liberal application of the rules, the trial court also rejected
petitioner's objections on the certification against forum shopping.
Petitioner moved for reconsideration but was denied. He filed a petition for certiorari before the Court
of Appeals which affirmed the orders of the Regional Trial Court in its assailed Decision dated
January 22, 2004, the dispositive portion of which states:
WHEREFORE, premises considered, the present petition is hereby DENIED DUE COURSE
and accordingly DISMISSED, for lack of merit. Consequently, the assailed Orders dated July
21, 2000 and July 17, 2003 are hereby both AFFIRMED. Respondent Judge is hereby
DIRECTED to resolve the controversy over the illegitimate filiation of the private respondents
(sic) minors [-] Karen Oanes Wei and Kamille Oanes Wei who are claiming successional
rights in the intestate estate of the deceased Sima Wei, a.k.a. Rufino Guy Susim.
SO ORDERED.10
The Court of Appeals denied petitioner's motion for reconsideration, hence, this petition.
Petitioner argues that the Court of Appeals disregarded existing rules on certification against forum
shopping; that the Release and Waiver of Claim executed by Remedios released and discharged the
Guy family and the estate of Sima Wei from any claims or liabilities; and that private respondents do
not have the legal personality to institute the petition for letters of administration as they failed to
prove their filiation during the lifetime of Sima Wei in accordance with Article 175 of the Family Code.
Private respondents contend that their counsel's certification can be considered substantial
compliance with the rules on certification of non-forum shopping, and that the petition raises no new
issues to warrant the reversal of the decisions of the Regional Trial Court and the Court of Appeals.
The issues for resolution are: 1) whether private respondents' petition should be dismissed for failure
to comply with the rules on certification of non-forum shopping; 2) whether the Release and Waiver
of Claim precludes private respondents from claiming their successional rights; and 3) whether
private respondents are barred by prescription from proving their filiation.
The petition lacks merit.
Rule 7, Section 5 of the Rules of Court provides that the certification of non-forum shopping should
be executed by the plaintiff or the principal party. Failure to comply with the requirement shall be

cause for dismissal of the case. However, a liberal application of the rules is proper where the higher
interest of justice would be served. InSy Chin v. Court of Appeals,11 we ruled that while a petition may
have been flawed where the certificate of non-forum shopping was signed only by counsel and not
by the party, this procedural lapse may be overlooked in the interest of substantial justice. 12 So it is in
the present controversy where the merits13 of the case and the absence of an intention to violate the
rules with impunity should be considered as compelling reasons to temper the strict application of
the rules.
As regards Remedios' Release and Waiver of Claim, the same does not bar private respondents
from claiming successional rights. To be valid and effective, a waiver must be couched in clear and
unequivocal terms which leave no doubt as to the intention of a party to give up a right or benefit
which legally pertains to him. A waiver may not be attributed to a person when its terms do not
explicitly and clearly evince an intent to abandon a right.14
In this case, we find that there was no waiver of hereditary rights. The Release and Waiver of Claim
does not state with clarity the purpose of its execution. It merely states that Remedios received
P300,000.00 and an educational plan for her minor daughters "by way of financial assistance and in
full settlement of any and all claims of whatsoever nature and kind x x x against the estate of the late
Rufino Guy Susim."15 Considering that the document did not specifically mention private
respondents' hereditary share in the estate of Sima Wei, it cannot be construed as a waiver of
successional rights.
Moreover, even assuming that Remedios truly waived the hereditary rights of private respondents,
such waiver will not bar the latter's claim. Article 1044 of the Civil Code, provides:
ART. 1044. Any person having the free disposal of his property may accept or repudiate an
inheritance.
Any inheritance left to minors or incapacitated persons may be accepted by their
parents or guardians. Parents or guardians may repudiate the inheritance left to their
wards only by judicial authorization.
The right to accept an inheritance left to the poor shall belong to the persons designated by
the testator to determine the beneficiaries and distribute the property, or in their default, to
those mentioned in Article 1030. (Emphasis supplied)
Parents and guardians may not therefore repudiate the inheritance of their wards without judicial
approval. This is because repudiation amounts to an alienation of property16 which must pass the
court's scrutiny in order to protect the interest of the ward. Not having been judicially authorized, the
Release and Waiver of Claim in the instant case is void and will not bar private respondents from
asserting their rights as heirs of the deceased.
Furthermore, it must be emphasized that waiver is the intentional relinquishment of a known right.
Where one lacks knowledge of a right, there is no basis upon which waiver of it can rest. Ignorance
of a material fact negates waiver, and waiver cannot be established by a consent given under a
mistake or misapprehension of fact.17
In the present case, private respondents could not have possibly waived their successional rights
because they are yet to prove their status as acknowledged illegitimate children of the deceased.
Petitioner himself has consistently denied that private respondents are his co-heirs. It would thus be
inconsistent to rule that they waived their hereditary rights when petitioner claims that they do not
have such right. Hence, petitioner's invocation of waiver on the part of private respondents must fail.

Anent the issue on private respondents' filiation, we agree with the Court of Appeals that a ruling on
the same would be premature considering that private respondents have yet to present evidence.
Before the Family Code took effect, the governing law on actions for recognition of illegitimate
children was Article 285 of the Civil Code, to wit:
ART. 285. The action for the recognition of natural children may be brought only during the
lifetime of the presumed parents, except in the following cases:
(1) If the father or mother died during the minority of the child, in which case the latter
may file the action before the expiration of four years from the attainment of his
majority;
(2) If after the death of the father or of the mother a document should appear of which
nothing had been heard and in which either or both parents recognize the child.
In this case, the action must be commenced within four years from the finding of the
document. (Emphasis supplied)
We ruled in Bernabe v. Alejo18 that illegitimate children who were still minors at the time the Family
Code took effect and whose putative parent died during their minority are given the right to seek
recognition for a period of up to four years from attaining majority age. This vested right was not
impaired or taken away by the passage of the Family Code. 19
On the other hand, Articles 172, 173 and 175 of the Family Code, which superseded Article 285 of
the Civil Code, provide:
ART. 172. The filiation of legitimate children is established by any of the following:
(1) The record of birth appearing in the civil register or a final judgment; or
(2) An admission of legitimate filiation in a public document or a private handwritten
instrument and signed by the parent concerned.
In the absence of the foregoing evidence, the legitimate filiation shall be proved by:
(1) The open and continuous possession of the status of a legitimate child; or
(2) Any other means allowed by the Rules of Court and special laws.
ART. 173. The action to claim legitimacy may be brought by the child during his or her
lifetime and shall be transmitted to the heirs should the child die during minority or in a state
of insanity. In these cases, the heirs shall have a period of five years within which to institute
the action.
The action already commenced by the child shall survive notwithstanding the death of either
or both of the parties.
ART. 175. Illegitimate children may establish their illegitimate filiation in the same way and on
the same, evidence as legitimate children.

The action must be brought within the same period specified in Article 173, except when the
action is based on the second paragraph of Article 172, in which case the action may be
brought during the lifetime of the alleged parent.
Under the Family Code, when filiation of an illegitimate child is established by a record of birth
appearing in the civil register or a final judgment, or an admission of filiation in a public document or
a private handwritten instrument signed by the parent concerned, the action for recognition may be
brought by the child during his or her lifetime. However, if the action is based upon open and
continuous possession of the status of an illegitimate child, or any other means allowed by the rules
or special laws, it may only be brought during the lifetime of the alleged parent.
It is clear therefore that the resolution of the issue of prescription depends on the type of evidence to
be adduced by private respondents in proving their filiation. However, it would be impossible to
determine the same in this case as there has been no reception of evidence yet. This Court is not a
trier of facts. Such matters may be resolved only by the Regional Trial Court after a full-blown trial.
While the original action filed by private respondents was a petition for letters of administration, the
trial court is not precluded from receiving evidence on private respondents' filiation. Its jurisdiction
extends to matters incidental and collateral to the exercise of its recognized powers in handling the
settlement of the estate, including the determination of the status of each heir.20 That the two causes
of action, one to compel recognition and the other to claim inheritance, may be joined in one
complaint is not new in our jurisprudence.21 As held in Briz v. Briz:22
The question whether a person in the position of the present plaintiff can in any event
maintain a complex action to compel recognition as a natural child and at the same time to
obtain ulterior relief in the character of heir, is one which in the opinion of this court must be
answered in the affirmative, provided always that the conditions justifying the joinder of the
two distinct causes of action are present in the particular case. In other words, there is no
absolute necessity requiring that the action to compel acknowledgment should have been
instituted and prosecuted to a successful conclusion prior to the action in which that same
plaintiff seeks additional relief in the character of heir. Certainly, there is nothing so peculiar
to the action to compel acknowledgment as to require that a rule should be here applied
different from that generally applicable in other cases. x x x
The conclusion above stated, though not heretofore explicitly formulated by this court, is
undoubtedly to some extent supported by our prior decisions. Thus, we have held in
numerous cases, and the doctrine must be considered well settled, that a natural child
having a right to compel acknowledgment, but who has not been in fact acknowledged, may
maintain partition proceedings for the division of the inheritance against his coheirs (Siguiong
vs. Siguiong, 8 Phil., 5; Tiamson vs. Tiamson, 32 Phil., 62); and the same person may
intervene in proceedings for the distribution of the estate of his deceased natural father, or
mother (Capistrano vs. Fabella, 8 Phil., 135; Conde vs. Abaya, 13 Phil., 249; Ramirez vs.
Gmur, 42 Phil., 855). In neither of these situations has it been thought necessary for the
plaintiff to show a prior decree compelling acknowledgment. The obvious reason is that in
partition suits and distribution proceedings the other persons who might take by inheritance
are before the court; and the declaration of heirship is appropriate to such proceedings.
WHEREFORE, the instant petition is DENIED. The Decision dated January 22, 2004 of the Court of
Appeals in CA-G.R. SP No. 79742 affirming the denial of petitioner's motion to dismiss; and its
Resolution dated May 25, 2004 denying petitioner's motion for reconsideration, are AFFIRMED. Let
the records be REMANDED to the Regional Trial Court of Makati City, Branch 138 for further
proceedings.

SO ORDERED.
Panganiban, C.J., Chairperson, Austria-Martinez, Callejo, Sr., Chico-Nazario, J.J., concur.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 174689

October 22, 2007

ROMMEL JACINTO DANTES SILVERIO, petitioner,

vs.
REPUBLIC OF THE PHILIPPINES, respondent.
DECISION
CORONA, J.:
When God created man, He made him in the likeness of God; He created them male and
female. (Genesis 5:1-2)
Amihan gazed upon the bamboo reed planted by Bathala and she heard voices coming from
inside the bamboo. "Oh North Wind! North Wind! Please let us out!," the voices said. She
pecked the reed once, then twice. All of a sudden, the bamboo cracked and slit open. Out
came two human beings; one was a male and the other was a female. Amihan named the
man "Malakas" (Strong) and the woman "Maganda" (Beautiful). (The Legend of Malakas and
Maganda)
When is a man a man and when is a woman a woman? In particular, does the law recognize the
changes made by a physician using scalpel, drugs and counseling with regard to a persons sex?
May a person successfully petition for a change of name and sex appearing in the birth certificate to
reflect the result of a sex reassignment surgery?
On November 26, 2002, petitioner Rommel Jacinto Dantes Silverio filed a petition for the change of
his first name and sex in his birth certificate in the Regional Trial Court of Manila, Branch 8. The
petition, docketed as SP Case No. 02-105207, impleaded the civil registrar of Manila as respondent.
Petitioner alleged in his petition that he was born in the City of Manila to the spouses Melecio
Petines Silverio and Anita Aquino Dantes on April 4, 1962. His name was registered as "Rommel
Jacinto Dantes Silverio" in his certificate of live birth (birth certificate). His sex was registered as
"male."
He further alleged that he is a male transsexual, that is, "anatomically male but feels, thinks and acts
as a female" and that he had always identified himself with girls since childhood. 1 Feeling trapped in
a mans body, he consulted several doctors in the United States. He underwent psychological

examination, hormone treatment and breast augmentation. His attempts to transform himself to a
"woman" culminated on January 27, 2001 when he underwent sex reassignment surgery 2 in
Bangkok, Thailand. He was thereafter examined by Dr. Marcelino Reysio-Cruz, Jr., a plastic and
reconstruction surgeon in the Philippines, who issued a medical certificate attesting that he
(petitioner) had in fact undergone the procedure.
From then on, petitioner lived as a female and was in fact engaged to be married. He then sought to
have his name in his birth certificate changed from "Rommel Jacinto" to "Mely," and his sex from
"male" to "female."
An order setting the case for initial hearing was published in the Peoples Journal Tonight, a
newspaper of general circulation in Metro Manila, for three consecutive weeks. 3 Copies of the order
were sent to the Office of the Solicitor General (OSG) and the civil registrar of Manila.
On the scheduled initial hearing, jurisdictional requirements were established. No opposition to the
petition was made.
During trial, petitioner testified for himself. He also presented Dr. Reysio-Cruz, Jr. and his American
fianc, Richard P. Edel, as witnesses.
On June 4, 2003, the trial court rendered a decision4 in favor of petitioner. Its relevant portions read:
Petitioner filed the present petition not to evade any law or judgment or any infraction thereof
or for any unlawful motive but solely for the purpose of making his birth records compatible
with his present sex.
The sole issue here is whether or not petitioner is entitled to the relief asked for.
The [c]ourt rules in the affirmative.
Firstly, the [c]ourt is of the opinion that granting the petition would be more in consonance
with the principles of justice and equity. With his sexual [re-assignment], petitioner, who has
always felt, thought and acted like a woman, now possesses the physique of a female.
Petitioners misfortune to be trapped in a mans body is not his own doing and should not be
in any way taken against him.
Likewise, the [c]ourt believes that no harm, injury [or] prejudice will be caused to anybody or
the community in granting the petition. On the contrary, granting the petition would bring the
much-awaited happiness on the part of the petitioner and her [fianc] and the realization of
their dreams.
Finally, no evidence was presented to show any cause or ground to deny the present petition
despite due notice and publication thereof. Even the State, through the [OSG] has not seen
fit to interpose any [o]pposition.
WHEREFORE, judgment is hereby rendered GRANTING the petition and ordering the Civil
Registrar of Manila to change the entries appearing in the Certificate of Birth of [p]etitioner,
specifically for petitioners first name from "Rommel Jacinto" to MELY and petitioners gender
from "Male" to FEMALE. 5

On August 18, 2003, the Republic of the Philippines (Republic), thru the OSG, filed a petition for
certiorari in the Court of Appeals.6 It alleged that there is no law allowing the change of entries in the
birth certificate by reason of sex alteration.
On February 23, 2006, the Court of Appeals7 rendered a decision8 in favor of the Republic. It ruled
that the trial courts decision lacked legal basis. There is no law allowing the change of either name
or sex in the certificate of birth on the ground of sex reassignment through surgery. Thus, the Court
of Appeals granted the Republics petition, set aside the decision of the trial court and ordered the
dismissal of SP Case No. 02-105207. Petitioner moved for reconsideration but it was
denied.9 Hence, this petition.
Petitioner essentially claims that the change of his name and sex in his birth certificate is allowed
under Articles 407 to 413 of the Civil Code, Rules 103 and 108 of the Rules of Court and RA 9048. 10
The petition lacks merit.
A Persons First Name Cannot Be Changed On the Ground of Sex Reassignment
Petitioner invoked his sex reassignment as the ground for his petition for change of name and sex.
As found by the trial court:
Petitioner filed the present petition not to evade any law or judgment or any infraction thereof
or for any unlawful motive but solely for the purpose of making his birth records
compatible with his present sex. (emphasis supplied)
Petitioner believes that after having acquired the physical features of a female, he became entitled to
the civil registry changes sought. We disagree.
The State has an interest in the names borne by individuals and entities for purposes of
identification.11 A change of name is a privilege, not a right.12 Petitions for change of name are
controlled by statutes.13 In this connection, Article 376 of the Civil Code provides:
ART. 376. No person can change his name or surname without judicial authority.
This Civil Code provision was amended by RA 9048 (Clerical Error Law). In particular, Section 1 of
RA 9048 provides:
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.
RA 9048 now governs the change of first name.14 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. 15 It likewise lays down the

corresponding venue,16 form17 and procedure. In sum, the remedy and the proceedings regulating
change of first name are primarily administrative in nature, not judicial.
RA 9048 likewise provides the grounds for which change of first name may be allowed:
SECTION 4. Grounds for Change of First Name or Nickname. The petition for change of
first name or nickname may be allowed in any of the following cases:
(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 first name or nickname in the community;
or
(3) The change will avoid confusion.
Petitioners 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 ones legal capacity or civil status. 18 RA 9048
does not sanction a change of first name on the ground of sex reassignment. Rather than avoiding
confusion, changing petitioners first name for his declared purpose may only create grave
complications in the civil registry and the public interest.
Before a person can legally change his given name, he must present proper or reasonable cause or
any compelling reason justifying such change.19 In addition, he must show that he will be prejudiced
by the use of his true and official name.20 In this case, he failed to show, or even allege, any
prejudice that he might suffer as a result of using his true and official name.
In sum, the petition in the trial court in so far as it prayed for the change of petitioners first name was
not within that courts primary jurisdiction as the petition should have been filed with the local civil
registrar concerned, assuming it could be legally done. It was an improper remedy because the
proper remedy was administrative, that is, that provided under RA 9048. It was also filed in the
wrong venue as the proper venue was in the Office of the Civil Registrar of Manila where his birth
certificate is kept. More importantly, it had no merit since the use of his true and official name does
not prejudice him at all. For all these reasons, the Court of Appeals correctly dismissed petitioners
petition in so far as the change of his first name was concerned.
No Law Allows The Change of Entry In The Birth Certificate As To Sex On the Ground of Sex
Reassignment
The determination of a persons sex appearing in his birth certificate is a legal issue and the court
must look to the statutes.21 In this connection, Article 412 of the Civil Code provides:
ART. 412. No entry in the civil register shall be changed or corrected without a judicial order.
Together with Article 376 of the Civil Code, this provision was amended by RA 9048 in so far
as clerical or typographical errors are involved. The correction or change of such matters can now be
made through administrative proceedings and without the need for a judicial order. In effect, RA
9048 removed from the ambit of Rule 108 of the Rules of Court the correction of such errors. 22 Rule
108 now applies only to substantial changes and corrections in entries in the civil register.23

Section 2(c) of RA 9048 defines what a "clerical or typographical error" is:

SECTION 2. Definition of Terms. As used in this Act, the following terms shall mean:
xxx

xxx

xxx

(3) "Clerical or typographical error" 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. (emphasis supplied)
Under RA 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.
The entries envisaged in Article 412 of the Civil Code and correctable under Rule 108 of the Rules of
Court are those provided in Articles 407 and 408 of the Civil Code:24
ART. 407. Acts, events and judicial decrees concerning the civil status of persons shall be
recorded in the civil register.
ART. 408. The following shall be entered in the civil register:
(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.
The acts, events or factual errors contemplated under Article 407 of the Civil Code include even
those that occur after birth.25 However, no reasonable interpretation of the provision can justify the
conclusion that it covers the correction on the ground of sex reassignment.
To correct simply means "to make or set aright; to remove the faults or error from" while to change
means "to replace something with something else of the same kind or with something that serves as
a substitute."26 The birth certificate of petitioner contained no error. All entries therein, including those
corresponding to his first name and sex, were all correct. No correction is necessary.
Article 407 of the Civil Code authorizes the entry in the civil registry of certain acts (such as
legitimations, acknowledgments of illegitimate children and naturalization), events (such as births,
marriages, naturalization and deaths) and judicial decrees (such as legal separations, annulments of
marriage, declarations of nullity of marriages, adoptions, naturalization, loss or recovery of
citizenship, civil interdiction, judicial determination of filiation and changes of name). These acts,
events and judicial decrees produce legal consequences that touch upon the legal capacity, status
and nationality of a person. Their effects are expressly sanctioned by the laws. In contrast, sex
reassignment is not among those acts or events mentioned in Article 407. Neither is it recognized
nor even mentioned by any law, expressly or impliedly.

"Status" refers to the circumstances affecting the legal situation (that is, the sum total of capacities
and incapacities) of a person in view of his age, nationality and his family membership. 27
The status of a person in law includes all his personal qualities and relations, more or less
permanent in nature, not ordinarily terminable at his own will, such as his being
legitimate or illegitimate, or his being married or not. The comprehensive term status
include such matters as the beginning and end of legal personality, capacity to have rights in
general, family relations, and its various aspects, such as birth, legitimation, adoption,
emancipation, marriage, divorce, and sometimes even succession. 28 (emphasis supplied)
A persons sex is an essential factor in marriage and family relations. It is a part of a persons legal
capacity and civil status. In this connection, Article 413 of the Civil Code provides:
ART. 413. All other matters pertaining to the registration of civil status shall be governed by
special laws.
But there is no such special law in the Philippines governing sex reassignment and its effects. This is
fatal to petitioners cause.
Moreover, Section 5 of Act 3753 (the Civil Register Law) provides:
SEC. 5. Registration and certification of births. The declaration of the physician or midwife
in attendance at the birth or, in default thereof, the declaration of either parent of the
newborn child, shall be sufficient for the registration of a birth in the civil register. Such
declaration shall be exempt from documentary stamp tax and shall be sent to the local civil
registrar not later than thirty days after the birth, by the physician or midwife in attendance at
the birth or by either parent of the newborn child.
In such declaration, the person above mentioned shall certify to the following facts: (a) date
and hour of birth; (b) sex and nationality of infant; (c) names, citizenship and religion of
parents or, in case the father is not known, of the mother alone; (d) civil status of parents; (e)
place where the infant was born; and (f) such other data as may be required in the
regulations to be issued.
xxx

xxx

xxx (emphasis supplied)

Under the Civil Register Law, a birth certificate is a historical record of the facts as they existed at
the time of birth.29 Thus, the sex of a person is determined at birth, visually done by the birth
attendant (the physician or midwife) by examining the genitals of the infant. Considering that there is
no law legally recognizing sex reassignment, the determination of a persons sex made at the time of
his or her birth, if not attended by error,30is immutable.31
When words are not defined in a statute they are to be given their common and ordinary meaning in
the absence of a contrary legislative intent. The words "sex," "male" and "female" as used in the Civil
Register Law and laws concerning the civil registry (and even all other laws) should therefore be
understood in their common and ordinary usage, there being no legislative intent to the contrary. In
this connection, sex is defined as "the sum of peculiarities of structure and function that distinguish a
male from a female"32 or "the distinction between male and female."33 Female is "the sex that
produces ova or bears young"34 and male is "the sex that has organs to produce spermatozoa for
fertilizing ova."35 Thus, the words "male" and "female" in everyday understanding do not include
persons who have undergone sex reassignment. Furthermore, "words that are employed in a statute

which had at the time a well-known meaning are presumed to have been used in that sense unless
the context compels to the contrary."36 Since the statutory language of the Civil Register Law was
enacted in the early 1900s and remains unchanged, it cannot be argued that the term "sex" as used
then is something alterable through surgery or something that allows a post-operative male-tofemale transsexual to be included in the category "female."
For these reasons, while petitioner may have succeeded in altering his body and appearance
through the intervention of modern surgery, no law authorizes the change of entry as to sex in the
civil registry for that reason. Thus, there is no legal basis for his petition for the correction or change
of the entries in his birth certificate.
Neither May Entries in the Birth Certificate As to First Name or Sex Be Changed on the
Ground of Equity
The trial court opined that its grant of the petition was in consonance with the principles of justice
and equity. It believed that allowing the petition would cause no harm, injury or prejudice to anyone.
This is wrong.
The changes sought by petitioner will have serious and wide-ranging legal and public policy
consequences. First, even the trial court itself found that the petition was but petitioners first step
towards his eventual marriage to his male fianc. However, marriage, one of the most sacred social
institutions, is a special contract of permanent union between a man and a woman.37 One of its
essential requisites is the legal capacity of the contracting parties who must be a male and a
female.38 To grant the changes sought by petitioner will substantially reconfigure and greatly alter the
laws on marriage and family relations. It will allow the union of a man with another man who has
undergone sex reassignment (a male-to-female post-operative transsexual). Second, there are
various laws which apply particularly to women such as the provisions of the Labor Code on
employment of women,39 certain felonies under the Revised Penal Code40 and the presumption of
survivorship in case of calamities under Rule 131 of the Rules of Court, 41 among others. These laws
underscore the public policy in relation to women which could be substantially affected if petitioners
petition were to be granted.
It is true that Article 9 of the Civil Code mandates that "[n]o judge or court shall decline to render
judgment by reason of the silence, obscurity or insufficiency of the law." However, it is not a license
for courts to engage in judicial legislation. The duty of the courts is to apply or interpret the law, not
to make or amend it.
In our system of government, it is for the legislature, should it choose to do so, to determine what
guidelines should govern the recognition of the effects of sex reassignment. The need for legislative
guidelines becomes particularly important in this case where the claims asserted are statute-based.
To reiterate, the statutes define who may file petitions for change of first name and for correction or
change of entries in the civil registry, where they may be filed, what grounds may be invoked, what
proof must be presented and what procedures shall be observed. If the legislature intends to confer
on a person who has undergone sex reassignment the privilege to change his name and sex to
conform with his reassigned sex, it has to enact legislation laying down the guidelines in turn
governing the conferment of that privilege.
It might be theoretically possible for this Court to write a protocol on when a person may be
recognized as having successfully changed his sex. However, this Court has no authority to fashion
a law on that matter, or on anything else. The Court cannot enact a law where no law exists. It can
only apply or interpret the written word of its co-equal branch of government, Congress.

Petitioner pleads that "[t]he unfortunates are also entitled to a life of happiness, contentment and
[the] realization of their dreams." No argument about that. The Court recognizes that there are
people whose preferences and orientation do not fit neatly into the commonly recognized
parameters of social convention and that, at least for them, life is indeed an ordeal. However, the
remedies petitioner seeks involve questions of public policy to be addressed solely by the
legislature, not by the courts.
WHEREFORE, the petition is hereby DENIED.
Costs against petitioner.
SO ORDERED.
Puno, C.J., Chairperson, Sandoval-Gutierrez, Azcuna, Garcia, JJ., concur.

Footnotes
Petitioner went for his elementary and high school, as well as his Bachelor of Science in
Statistics and Master of Arts, in the University of the Philippines. He took up Population
Studies Program, Master of Arts in Sociology and Doctor of Philosophy in Sociology at the
University of Hawaii, in Manoa, Hawaii, U.S.A. Rollo, p. 48.
1

This consisted of "penectomy [surgical removal of penis] bilateral oschiectomy [or

orchiectomy which is the surgical excision of the testes] penile skin inversion vaginoplasty
[plastic surgery of the vagina] clitoral hood reconstruction and augmentation mammoplasty
[surgical enhancement of the size and shape of the breasts]." Id.
2

On January 23, 2003, January 30, 2003 and February 6, 2003.

Penned by Judge Felixberto T. Olalia, Jr. Rollo, pp. 51-53.

Id., pp. 52-53 (citations omitted).

Docketed as CA-G.R. SP No. 78824.

Special Sixth Division.

Penned by Associate Justice Arcangelita M. Romilla-Lontok with Associate Justices Marina

L. Buzon and Aurora Santiago-Lagman concurring. Rollo, pp. 25-33.
8

Resolution dated September 14, 2006, id., pp. 45-46.

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 the Purpose Articles 376 and
412 of the Civil Code of the Philippines.
10

11

Wang v. Cebu City Civil Registrar, G.R. No. 159966, 30 March 2005, 454 SCRA 155.

12

Id.

13

K v. Health Division, Department of Human Resources, 277 Or. 371, 560 P.2d 1070 (1977).

Under Section 2 (6) of RA 9048, "first name" refers to a name or nickname given to a
person which may consist of one or more names in addition to the middle names and last
names. Thus, the term "first name" will be used here to refer both to first name and
nickname.
14

15

The last paragraph of Section 7 of RA 9048 provides:

SECTION 7. Duties and Powers of the Civil Registrar General. xxx xxx xxx
Where the petition is denied by the city or municipal civil registrar or the consul
general, the petitioner may either appeal the decision to the civil registrar general or
file the appropriate petition with the proper court.

SECTION 3. Who May File the Petition and Where. 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, in person, a verified petition
with the local civil registry office of the city or municipality where the record being sought to
be corrected or changed is kept.
16

In case the petitioner has already migrated to another place in the country and it would not
be practical for such party, in terms of transportation expenses, time and effort to appear in
person before the local civil registrar keeping the documents to be corrected or changed, the
petition may be filed, in person, with the local civil registrar of the place where the interested
party is presently residing or domiciled. The two (2) local civil registrars concerned will then
communicate to facilitate the processing of the petition.
Citizens of the Philippines who are presently residing or domiciled in foreign countries may
file their petition, in person, with the nearest Philippine Consulates.
The petitions filed with the city or municipal civil registrar or the consul general shall be
processed in accordance with this Act and its implementing rules and regulations.
All petitions for the clerical or typographical errors and/or change of first names or nicknames
may be availed of only once.
SECTION 5. Form and Contents of the Petition. The petition shall be in the form of an
affidavit, subscribed and sworn to before any person authorized by the law to administer
oaths. The affidavit shall 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. The
petitioner shall state the particular erroneous entry or entries, which are sought to be
corrected and/or the change sought to be made.
17

The petition shall be supported with the following documents:

(1) A certified true machine copy of the certificate or of the page of the registry book
containing the entry or entries sought to be corrected or changed;
(2) At least two (2) public or private documents showing the correct entry or entries
upon which the correction or change shall be based; and
(3) Other documents which the petitioner or the city or municipal civil registrar or the
consul general may consider relevant and necessary for the approval of the petition.
In case of change of first name or nickname, the petition shall likewise be supported with the
documents mentioned in the immediately preceding paragraph. In addition, the petition shall
be published at least once a week for two (2) consecutive weeks in a newspaper of general
circulation. Furthermore, the petitioner shall submit a certification from the appropriate law
enforcement agencies that he has no pending case or no criminal record.
18

Republic v. Court of Appeals, G.R. No. 97906, 21 May 1992, 209 SCRA 189.

19

Supra note 11.

20

Id.

21

In re Ladrach, 32 Ohio Misc.2d 6, 513 N.E.2d 828 (1987).

22

Lee v. Court of Appeals, 419 Phil. 392 (2001).

23

Id.

24

Co v. Civil Register of Manila, G.R. No. 138496, 23 February 2004, 423 SCRA 420.

25

Id.

26

Id.

27

Beduya v. Republic of the Philippines, 120 Phil. 114 (1964).

28

Salonga, Jovito, Private International Law, 1995 Edition, Rex Bookstore, p. 238.

This, of course, should be taken in conjunction with Articles 407 and 412 of the Civil Code
which authorizes the recording of acts, events and judicial decrees or the correction or
change of errors including those that occur after birth. Nonetheless, in such cases, the
entries in the certificates of birth are 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. (Co v. Civil Register of
Manila, supra note 24)
29

The error pertains to one where the birth attendant writes "male" or "female" but the
genitals of the child are that of the opposite sex.
30

Moreover, petitioners female anatomy is all man-made. The body that he inhabits is a
male body in all aspects other than what the physicians have supplied.
31

32

Blacks Law Dictionary, 8th edition (2004), p.1406.

33

Words and Phrases, volume 39, Permanent Edition, p. 106.

In re Application for Marriage License for Nash, 2003-Ohio-7221 (No. 2002-T-0149, slip
op., Not Reported in N.E.2d, 2003 WL 23097095 (Ohio App. 11 Dist., December 31, 2003),
citing Websters II New College Dictionary (1999).
34

35

Id.

36

Standard Oil Co. v. United States, 221 U.S. 1 (1911), 31 S.Ct. 502, 55 L.Ed. 619.

37

Article 1, Family Code.

38

Article 2(1), Id.

These are Articles 130 to 138 of the Labor Code which include nightwork prohibition,
facilities for women, prohibition on discrimination and stipulation against marriage, among
others.
39

These include Article 333 on adultery, Articles 337 to 339 on qualified seduction, simple
seduction and acts of lasciviousness with the consent of the offended party and Articles 342
and 343 on forcible and consented abduction, among others.
40

41

Section 3(jj)(4).

Aznar vs. Garcia [7 SCRA 95]

Aznar vs. Garcia [7 SCRA 95]

Post under case digests, Civil Law at Saturday, February 25, 2012 Posted by Schizophrenic Mind

Facts: Edward Christensens (citizen of the State of

California) will was executed in Manila where it provides
that Helen Christensen Garcia receive a payment of
P3,600 and proposed that the residue of the estate be
transferred to his daughter Maria Lucy Christensen. Helen
Christensen Garcia opposed the project of partition of
Edwards estate claiming that she was deprived of her
legitime as acknowledged natural child under
the Philippine law.
Issue: Whether
or
not
the California
the Philippine law should apply in the case at bar.

law or

Held: Philippine law should be applied. The State of

California prescribes two sets of laws for its citizens
residing therein and a conflict of law rules for its citizens
domiciled in other jurisdictions. Art. 946 of the California
Civil Code states that If there is no law to the contrary in
the place where personal property is situated, it is deemed
to follow the person of its owner and is governed by the
law of his domicile. Edward, a citizen of the State of
California, is considered to have his domicile in the
Philippines. The court of domicile cannot and should not
refer the case back to the California, as such action would
leave the issue incapable of determination, because the
case would then be tossed back and forth between the
states(doctrine of renvoi). The validity of the provisions of
Edwards will depriving his acknowledged natural child of
latters legacy, should be governed by the Philippine law.
The decision appealed from is reversed and the case
returned to the lower court with instruction that the
partition be made as thePhilippine law on succession
provides.