Case Digest on TOLENTINO vs. CA (Absolute Divorce)
November 12, 2010
Petition for certiorari to review the decision of the Court of Appeals
On February 8, 1931 – Respondent Consuelo David married Arturo Tolentino.
Then on September 15, 1943 – Marriage was dissolved and terminated 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 a t least 3 continuous years
Arturo Tolentio married Pular Adorable but she died soon after the marriage.
Constancia married Arturo Tolentino on April 21, 1945 and they have 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). Trial Court ruled that Consuelo David should discontinue her usage of the surname of Tolentino. But the Court of Appeals reversed the decision of the Trial Court.
Issues: Whether or Not the petitioner’s cause of action has already prescribed
Whether or not the petitioner can exclude by injunction Consuelo David from using the surname of her former husband from whom she was divorced.
Held : 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
Also, Art. 1149 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.
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.
There was a commentary by Tolentino with regards to 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 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 is 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
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