Notarizing a Spouse's Document: When Prior Law Allowed It

In 2002, a lawyer notarized an affidavit of loss executed by his own wife. Nearly a decade later, that act became the subject of an administrative complaint for misconduct. The Supreme Court had to decide whether the notary violated his duties under the law in force at the time. The case clarifies an important point: a notary's obligations are measured by the law existing when the notarization was made, not by rules enacted later.

The Facts of the Case

In November 2003, a property owner offered to sell a 3,317-square meter lot in Daraga, Albay to Roberto Mabini and his wife Mercedes. The title was allegedly lost, but the buyers proceeded with the purchase. After securing a second owner's duplicate copy of the title from the Regional Trial Court, the Register of Deeds issued a new transfer certificate of title in the buyers' names in March 2005.

In March 2012, Evangeline Kintanar, the wife of Atty. Vitto A. Kintanar, filed a complaint against Mabini and others for reconveyance and annulment of title. Attached to that complaint was an Affidavit of Lost Owner's Duplicate Copy of Title executed by Evangeline and notarized by Atty. Kintanar on April 25, 2002.

Mabini argued that Atty. Kintanar committed misconduct because he notarized a document of his wife, a person within the prohibited degree of relationship. Atty. Kintanar countered that the notarization was governed by the Revised Administrative Code of 1917, which did not prohibit a notary from notarizing a spouse's document.

The Issue

The sole question was whether Atty. Kintanar committed misconduct by notarizing his wife's affidavit of loss in 2002.

The Ruling: No Violation Under the Applicable Law

The Supreme Court dismissed the complaint. The Court emphasized that notarization is not a mere ministerial act—it transforms a private document into a public one that enjoys full credit on its face. However, a lawyer cannot be held liable for violating notarial duties when the law in effect at the time of the act imposed no such prohibition.

The Court traced the history of notarial law in the Philippines. The Spanish Notarial Law of 1889 governed until it was repealed by the Revised Administrative Code of 1917. It was only in 2004 that the Court promulgated the Revised Rules on Notarial Practice (A.M. No. 02-8-13-SC).

Citing Heirs of Pedro Alilano v. Atty. Examen (756 Phil. 608 [2015]), the Court noted that the 1917 Code did not prohibit a notary public from notarizing a document of a relative. In that case, a lawyer who notarized a deed of sale executed by his brother and the brother's wife in 1984 was found competent to do so.

The Court also relied on Ylaya v. Atty. Gacott (702 Phil. 390 [2013]), where documents notarized in 2000 and 2001 were held not covered by the 2004 Rules. The Court explained that the 1917 Code "did not contain the present prohibition against notarizing documents where the parties are related to the notary public within the 4th civil degree, by affinity or consanguinity."

Applying these principles, the Court held that Atty. Kintanar's notarization of his wife's affidavit on April 25, 2002 was governed by the 1917 Revised Administrative Code. Since that law contained no prohibition against notarizing a spouse's document, there was no basis to hold him liable for misconduct.

Practical Takeaways

• The law in force at the time of notarization governs. A notary's act is judged by the rules existing when the document was notarized, not by later amendments.
• The 2004 Revised Rules on Notarial Practice changed the landscape. Since July 6, 2004, notaries are prohibited from notarizing documents where the parties are related to them within the fourth civil degree of consanguinity or affinity.
• Notarization carries serious duties. Even though the respondent prevailed here, the Court reaffirmed that notarization is impressed with public interest and transforms private documents into public ones.
• Relationship alone is not always disqualifying. Under the 1917 Code, a notary could notarize a relative's document. The prohibition is a product of the 2004 Rules.
• Administrative complaints require proof of a specific violation. A charge of misconduct must identify the rule or law breached at the time of the act.

This article is general information and not legal advice. For your specific situation, consult a lawyer or ask ASG Legal AI.