TOLENTINO vs.

CA (Absolute Divorce)
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 petitioners 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 husbands 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 petitioners name and surname. Usurpation implies injury to the
interests of the owner of the name. It consists with the possibility of confusion of identity