Sunday, October 23, 2011

Tolentino v CA (1988)

Tolentino v CA (1988)

Private respondent Consuelo David married Arturo Tolentino in 1931. The marriage was dissolved and terminated in 1943 pursuant to the law during the Japanese occupation by a decree of absolute divorce on the grounds of desertion and abandonment by the wife for at least 3 continuous years.
Arturo Tolentino then married Pilar Adorable but she died soon after the marriage. After that, Constancia married Arturo Tolentino on April 21, 1945 and they had 3 children. Constancia Tolentino is the present legal wife of Arturo Tolentino.
Consuelo David continued using the surname Tolentino after the divorce and up to the time that the complaint was filed.  Her usage of the surname Tolentino was authorized by the family of Arturo Tolentino (brothers and sisters).
 In RTC, Consuelo David should discontinue her usage of the surname of Tolentino. The CA decision reversed that of the RTC’s.

1. WON the petitioner’s cause of action has already prescribed
2. WON the petitioner can exclude by injunction Consuelo David from using the surname of her former husband from whom she was divorced.

1. Yes
In Art 1150 CC The time for prescription of all kinds of actions, when there in no special provision which ordains otherwise, shall be counted from the day they may be brought.
Art 1149 CC Period of prescription is 5 years from the right of action accrues.
The action has long prescribed because she married Arturo Tolentino on April 21, 1945; Civil Code took effect on August 30, 1950; She acquired knowledge that Consuelo David was still using the surname Tolentino in 1951. 
She should have filed the case after she obtained knowledge that Consuelo David was still using the surname Tolentino. The case was filed on November 23, 1971 or 20 years after she obtained knowledge.
2. No
Philippine law is silent whether or not a divorced woman may continue to use the surname of her husband because there are no provisions for divorce under Philippine law.
On the Commentary of Tolentino as regards Art 370 of the CC. The wife cannot claim an exclusive right to use the husband’s surname.  She cannot be prevented from using it, but neither can she restrain others from using it.
Art 371 is not applicable because it contemplates annulment while the present case refers to absolute divorce where there is severance of valid marriage ties.  Effect of divorce was more akin to death of the spouse where the deceased woman is continued to be referred to as “Mrs. of the husband” even if he has remarried.
If the appeal would be granted the respondent would encounter problems because she was able to prove that she entered into contracts with third persons, acquired properties and entered into other legal relations using the surname Tolentino.  Petitioner failed to show the she would suffer any legal injury or deprivation of right.
There was no usurpation of the petitioner’s name and surname.  Usurpation implies injury to the interests of the owner of the name.  It consists with the possibility of confusion of identity. The elements of usurpation were 1. Actual use of another’s name, 2. Use is unauthorized, 3. Use of another’s name is to designate personality or identity of a person. None of these elements were present in the case because public knowledge referred to Constancia as the legal wife of Arturo, and Consuelo did represent herself after the divorce as Mrs. Arturo Tolentino.
Silva v Peralta was cited by the petitioner but the case is not applicable.  In Silva, it was not mere use of the surname that was enjoined but the defendant’s representation that she was the wife of Saturnino Silva, there was usurpation of the status of the wife.

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