Letter to a Lawyer:

Dear Attorney,

Good day. I am currently pregnant. I was legally married to my first husband, but we have been separated for 11 years without a legal annulment or divorce. I am now living with a new partner, and I am pregnant with his child.

My questions are as follows:

Can I use my current partner's surname for my baby if he acknowledges and signs as the legal father on the birth certificate? If not, can I use my maiden surname instead?
Will this situation affect my eligibility to claim maternity benefits?

Thank you for your guidance.

Sincerely,
A Concerned Mother-to-Be

Legal Analysis and Comprehensive Discussion

I. Paternity and the Acknowledgment of a Child

The Philippine legal framework on paternity and legitimacy is rooted in the Family Code of the Philippines (Executive Order No. 209) and supported by relevant provisions of the Civil Code and Administrative Order No. 1, Series of 2001 of the Civil Registrar General.

A. Presumption of Legitimacy

Under Article 164 of the Family Code, a child conceived or born during a valid and existing marriage is presumed legitimate. This means that any child you bear is presumed to be the child of your lawful husband, even if you have been separated de facto (not legally) for over 11 years.

The presumption is strong and can only be overturned by evidence of non-access (e.g., DNA testing or proof that you and your husband were physically separated at the time of conception).

B. Acknowledgment by the Biological Father

Acknowledgment Procedure:
If your live-in partner wishes to acknowledge the child as his own, he may sign the Affidavit of Acknowledgment of Paternity (AAP), which will be filed with the birth certificate at the local Civil Registrar's office. However, because you are still legally married, this acknowledgment might be questioned unless:
- Your husband formally disclaims the child’s legitimacy through legal means, or
- The presumption of legitimacy is rebutted by DNA evidence or other sufficient proof.
Effect of Acknowledgment on the Child's Surname:
If the child is acknowledged by your live-in partner, Article 176 of the Family Code as amended by Republic Act No. 9255 allows the child to use the biological father’s surname if:
- The father executes an Affidavit of Acknowledgment, and
- This affidavit is attached to the child’s birth certificate.
Possible Issues:
Your child’s use of the biological father’s surname may face challenges because of the presumption of legitimacy under Article 164. The Civil Registrar may initially register the child under your husband’s surname, given the legal presumption. You would need a court order to amend this if legitimacy is contested.

C. Using the Mother’s Maiden Name

If the biological father’s acknowledgment is not feasible due to complications or disputes, you can opt to use your maiden surname for the child. This is a common practice for children whose fathers do not acknowledge them or in cases where legitimacy is presumed but disputed.

II. Implications for Maternity Benefits

The situation you described does not generally affect your entitlement to maternity benefits, provided that the following conditions are met:

SSS Maternity Benefits:
If you are a member of the Social Security System (SSS), you are entitled to maternity benefits under Republic Act No. 11210 (The Expanded Maternity Leave Law). This law grants a maximum of 105 days of paid leave, plus an additional 15 days for solo parents (if applicable), regardless of the child’s paternity or legitimacy.
Employer-Provided Benefits:
Employers are obligated to provide maternity benefits per labor laws. Your marital status or the legitimacy of your child should not interfere with your right to these benefits.
Health Insurance (PhilHealth):
As a PhilHealth member, you are also eligible for maternity care packages. Again, the legitimacy or paternity of the child does not affect these entitlements.

Key Considerations:
Ensure your contributions to SSS and PhilHealth are up-to-date to avoid any complications when claiming your benefits.

III. Legal Recommendations

Documenting Paternity:
- Seek the assistance of a lawyer or the local Civil Registrar to ensure proper documentation of your child’s paternity.
- If your live-in partner is willing to acknowledge the child, formalize this through an AAP or judicial processes if disputes arise.
Legitimacy Concerns:
- Be prepared to address the presumption of legitimacy through appropriate legal channels, especially if your husband contests the acknowledgment by the biological father.
Protecting Your Maternity Benefits:
- Provide complete and truthful documentation when filing for benefits. Issues of paternity generally do not interfere with eligibility.

IV. Relevant Legal Precedents and Examples

Case of Presumed Legitimacy:
In Valdes v. RTC (2000), the Supreme Court upheld the presumption of legitimacy for a child born during a valid marriage. The court emphasized that only clear and convincing evidence could rebut this presumption.
Use of Maiden Name:
In instances where paternity acknowledgment is absent or disputed, the mother’s maiden name is often the default surname for the child, as affirmed in Civil Registrar General guidelines.
SSS and Expanded Maternity Leave:
Real-life cases highlight that neither legitimacy nor paternity disputes affect the mother’s right to claim benefits under the SSS Maternity Benefit Program and Expanded Maternity Leave Law.

V. Conclusion

Navigating the legal intricacies of paternity, legitimacy, and maternity benefits requires careful attention to the Family Code, Civil Registrar rules, and labor laws. While your situation poses complexities due to your marital status and current pregnancy, legal remedies are available to ensure the proper documentation of your child’s paternity and your protection under labor and social welfare laws.

It is advisable to consult directly with a legal professional for assistance in addressing legitimacy concerns, ensuring the correct surname on your child’s birth certificate, and safeguarding your maternity benefits.