Dear Attorney,

I am writing to seek clarification on a matter regarding the surname of my unborn child. I have been legally married but separated from my husband for nearly 11 years, and I am currently pregnant by another man. Since my marital status remains unchanged, I am concerned about the legal implications of registering my child’s birth. Specifically, I want to understand the rules governing whose surname my child will carry and whether there are steps I can take to ensure the child does not use my husband’s surname. Your guidance on this matter would be greatly appreciated.

Respectfully yours,
A Concerned Mother

Legal Considerations: Determining a Child’s Surname in the Philippines

In Philippine law, the matter of a child’s surname is governed by the Family Code of the Philippines and relevant laws concerning civil registration. The unique situation of a woman who is still legally married, yet separated, and pregnant by another man, raises several legal and practical considerations. Below is a comprehensive discussion of the applicable laws and the potential remedies for the concern raised.

1. Presumption of Legitimacy

Under Article 164 of the Family Code of the Philippines, a child born to a married woman is presumed legitimate, even if the husband is not the biological father. This presumption exists to protect the stability of familial relationships and preserve the sanctity of marriage. Legitimacy confers certain rights, including the right to use the father’s surname, inherit from him, and be supported by him.

However, this presumption is rebuttable. If the biological father acknowledges the child or if the mother provides evidence to refute the child’s legitimacy, the presumption may be overturned.

2. Implications of Legitimacy on the Surname

According to Article 174 of the Family Code, legitimate children shall use the surname of the father. Therefore, if the presumption of legitimacy remains unrebutted, the child would be required to use the surname of the lawful husband, regardless of his non-biological connection to the child.

The law, however, provides avenues to address situations where the presumption of legitimacy is not reflective of the biological reality.

3. Options for Registering the Child’s Surname

Depending on your circumstances, there are several approaches to ensure the child carries the appropriate surname:

A. Acknowledgment by the Biological Father

Under Republic Act No. 9255, amending Article 176 of the Family Code, illegitimate children (those born outside of valid wedlock) may use the surname of the biological father if he expressly recognizes the child through the birth certificate or a public document.

For your child to be registered under the biological father’s surname:

The presumption of legitimacy must be rebutted.
The biological father must provide written acknowledgment, which is duly notarized or executed in a public instrument.

B. Judicial Declaration of Nullity of Marriage

If you secure a judicial declaration that your marriage to your estranged husband is null and void, the presumption of legitimacy no longer applies. This would allow your child to be registered as illegitimate, thereby using the surname of the biological father (if acknowledged) or your surname.

C. Petition to Challenge the Presumption of Legitimacy

You may file a petition for judicial determination of filiation. If the court finds sufficient evidence to declare the child illegitimate, the child can carry the biological father’s surname (upon acknowledgment) or your surname if no acknowledgment is made.

D. Retaining the Child’s Legitimacy Under the Husband’s Surname

If no steps are taken to rebut the presumption of legitimacy, the child will retain the husband’s surname. This may lead to complications if the husband disclaims the child or if inheritance disputes arise in the future.

4. Procedure for Birth Registration

The registration of births in the Philippines is governed by the Civil Registry Law. The following steps should be taken:

Filing the Birth Certificate
- When a child is born to a married woman, the husband’s name is generally entered as the father.
- If you wish to indicate a different surname or leave the father’s name blank, supporting documentation and compliance with specific civil registry office policies are necessary.
Affidavit of Acknowledgment
- If the biological father acknowledges the child, an affidavit must be executed and attached to the birth certificate.
Correction or Annotation
- Should there be a need to correct the initial registration, such as removing the husband’s name as the presumed father, you may file a petition for correction with the local civil registry or the courts under Rule 108 of the Rules of Court.

5. Legal Risks and Complications

The situation outlined presents potential legal complications:

Inheritance Disputes: Using the husband’s surname might entitle the child to inheritance rights, which could be contested by the husband or his heirs.
Support Claims: Registering the child under the husband’s surname might obligate him to provide financial support, though this could also be grounds for a legal challenge.
Paternity Challenges: The biological father may wish to establish his rights to the child, necessitating formal legal proceedings.

6. Practical Steps and Recommendations

Given the complexity of this situation, here are practical steps to protect your and your child’s interests:

Consult a Lawyer: Secure professional legal assistance to navigate the process and ensure compliance with applicable laws.
Discuss with the Biological Father: Determine whether he is willing to acknowledge the child and execute the necessary documents.
Consider Legal Separation or Annulment: If feasible, pursuing legal separation or annulment may simplify future issues related to legitimacy and surnames.
Prepare for Judicial Remedies: Be ready to file the appropriate petitions to rebut the presumption of legitimacy or correct civil registry records if disputes arise.

7. Conclusion

The issue of a child’s surname involves a complex interplay of laws on legitimacy, paternity, and civil registration. The presumption of legitimacy under Philippine law can complicate situations where a married woman is separated and conceives a child with another man. However, there are legal remedies available to ensure that the child’s surname reflects biological reality and parental intent.

A proactive approach, with proper legal guidance, can help avoid future disputes and ensure the best interests of both mother and child are upheld. For personalized assistance, consult a family law attorney to determine the most appropriate course of action based on your circumstances.