Lost option

A married woman is not prohibited from continuously using her maiden name although she has an option, but not a duty, to use her husband’s surname either by adding it to her maiden first name and surname, or to her maiden first name only or by using her husband’s full name but prefixing a word indicating that she is his wife, such as “Mrs.” (Article 370, Civil Code). Thus for example, ‘Maria Reyes” who is married to “Juan Santos”, may continuously use Maria Reyes or may choose “Maria Reyes-Santos”, or “Maria Santos” or “Mrs. Juan Santos” as her married name. This is the law that Virgie tried to unsuccessfully invoke in her case. Let us find out why.

Virgie B. Mora is a Filipino citizen married to Francis A. Rallos. In the passport issued to her the following entries appear: “Rallos” as her surname, “Virgie” as her given name and “Mora” as her middle name. Prior to the expiry date of her passport, Virgie applied for its renewal with the Department of Foreign Affairs (DFA) Office in Chicago, Illinois, USA with a request to revert to her maiden name and surname (Virgie B. Mora) in the replacement passport.

Both the DFA Office in Chicago and the DFA Head Office in Manila however denied her request. The said Office ruled that while it is not obligatory for a married woman to use her husband’s surname, the use of maiden name is allowed in passport application only if the married name has not been used in the previous application. Citing the Passport Act of 1996 (Section 5 (d), R.A. 8239 and its Implementing Rules and Regulations (IRR, Sec. 1 Art.12), the DFA said that Virgie may revert to her maiden name only in case of annulment or nullity of her marriage, divorce decree or death of her husband.

Virgie questioned this ruling. She contended that denying her request to resume her maiden name in the replacement passport conflicts with, and thus operates as an implied repeal of Article 370 of the Civil Code. Was Virgie correct?

No. Virgie is mistaken. The conflict between Article 370 of the Civil Code and Section 5(d) of R.A. 8239 is more imagined than real. RA 8239 including its IRR does not prohibit a married woman from using her maiden name in her passport. In fact in recognition of this right, the DFA allows a married woman who applies for a passport for the first time to use her maiden name. Such an applicant is not required to adopt her husband’s surname.

However once a married woman opted to adopt her husband’s surname in her passport, she may not revert to the use of her maiden name except in cases of (1) death of her husband, (2) divorce, (3) annulment, or (4) nullity of her marriage. Since Virgie’s marriage to her husband subsists, she may not resume her maiden name in the replacement passport. A married woman’s reversion to the use of her maiden name must be based only on the severance of the ties of marriage.

Even assuming RA8239 conflicts with the Civil Code, the provisions of RA 8239 which is a special law specifically dealing with passport issuance must prevail over the provisions of Title XIII of the Civil Code which is the general law on the use of surnames. A basic tenet in statutory construction is that a special law prevails over a general law.

Virgie would not have encountered any problem in the replacement passport had she opted to continuously and consistently use her maiden name from the moment she was married and from the time she first applied for a Philippine passport. If her present request is allowed, nothing will prevent her in the future from requesting to revert to the use of her husband’s surname. Such unjustified changes cannot be countenanced considering that a passport is superior to all other official documents. Otherwise undue confusion and inconsistency in the records of the passport holders will arise (Remo vs. Secretary of Foreign Affairs, G.R. 169202, March 5, 2010).

Note: Books containing compilation of my articles on Labor Law and Criminal Law (Vols. I and II) are now available. Call Tel. 7249445.

* * *

E-mail at: [email protected]