I have a question concerning the use of husband’s surname. I met a woman who is already married but does not use her husband’s surname. She retained the use of her maiden name. Is it legal to do that?
Article 370 of the Civil Code specifically states that a married woman may use: (1) her maiden first name and surname and add her husband’s surname; or (2) her maiden first name and her husband’s surname; or (3) her husband’s full name, but prefixing a word indicating that she is his wife, such as “Mrs.” At first glance, it would seem that a married woman must choose any of the three (3) options provided, all of which adopt the surname of her spouse, at the very least.
This, however, is not the case. Notice that Article 370 of the Civil Code uses the word “may,” signifying that the provision is merely directory, not mandatory. It is a basic canon in statutory construction that the use of the word “may” connotes a permissible thing, and operates to confer discretion. As decreed by the Supreme Court in one case, “the use of the word “may” clearly shows that it is directory in nature, not mandatory, as petitioner contends. When used in a statute, it is permissive only and operates to confer discretion; while the word “shall” is imperative, operating to impose a duty which may be enforced” (Office of the Ombudsman vs. Andutan, G.R. No. 164679, July 27, 2011, Ponente, Associate Justice Arturo Brion).
Applying this rule, a married woman has four (4) options. She has the option to either adopt her husband’s surname using any of the three (3) forms mentioned in Article 370 of the Civil Code, or completely disregard that article and retain her maiden name. The example given by Prof. Sta. Maria in his book captures the gist of this rule, to wit: “Thus, Corazon Cojuangco married to Benigno Aquino Jr. may use either Corazon Cojuangco, Corazon Cojuangco-Aquino, Corazon Aquino or Mrs. Benigno Aquino Jr.” (Persons and Family Relations Law, Melencio Sta. Maria, p. 898)
Nevertheless, if a married woman opts to retain her maiden name, she must be candid in disclosing her marital status, especially when required in official transactions or documents. Otherwise, she would run the risk of criminal prosecution as concealment of marital status, especially in documents, may constitute a crime, i.e. falsification, depending on the nature and circumstances of the case.
We hope we were able to sufficiently address your concerns. Kindly bear in mind that this opinion is based on the facts you narrated and our appreciation of the same. Our opinion may vary if facts are changed or elaborated.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to firstname.lastname@example.org