Dear Attorney,
I hope this letter finds you well. I am writing to clarify an important concern about my upcoming newborn’s surname. My current partner and I are not married, yet we both wish for our child to carry my partner’s surname. I have come across several comments suggesting that, under Philippine law, I might be restricted from using my partner’s surname if we are unmarried. This situation feels uncertain, and I wish to ensure I follow proper legal protocols.
Given the complexity of this matter, I would be grateful for your professional guidance on whether it is legally permissible to use my partner’s surname for our baby, and if there are any prerequisites, documents, or procedures we must satisfy. I wish to clarify if there are obstacles or prohibitions in our jurisdiction that would prevent our child from bearing my partner’s last name, especially since we have not yet formalized our union.
Thank you so much for your advice. Your assistance means a great deal to me and my growing family. I look forward to your response and any steps we must take to comply with Philippine law.
Sincerely,
A Concerned Parent
LEGAL ARTICLE ON PHILIPPINE LAW: USING THE FATHER’S SURNAME FOR A CHILD BORN OUT OF WEDLOCK
Disclaimer: The discussion below is for general informational purposes only and does not constitute formal legal advice. Specific legal questions should be directed to a licensed attorney who can address the particular circumstances involved.
I. Introduction
In the Philippines, questions concerning the surname of a child can be emotionally charged and legally significant. The importance of a surname stems from identity, inheritance rights, and familial lineage. With modern family arrangements and diverse personal circumstances, it is crucial to clarify how Philippine law governs a child’s right to carry the father’s surname, particularly when the parents are not legally married. This article explores the relevant provisions of the law, the process for acknowledging a child, and the rights and obligations that go along with allowing the child to use the father’s surname.
II. Governing Laws and Legal Framework
The Civil Code of the Philippines
The Civil Code, which predates the Family Code, introduced many legal concepts concerning paternity, filiation, and the recognition of children. Although some of its provisions have been superseded by the Family Code, portions remain relevant, especially for understanding historical context.The Family Code of the Philippines (Executive Order No. 209, as amended)
The Family Code, effective from August 3, 1988, serves as the primary law on marriage, property relations, and parental authority. It reclassified legitimate, illegitimate, and legitimated children, and prescribes rules for paternal recognition.
- Article 175 of the Family Code indicates that illegitimate children are under the parental authority of the mother and shall use her surname, unless the father acknowledges them under conditions specified by law.
- Article 176 clarifies that illegitimate children are allowed to use the father’s surname if properly recognized, following what is now governed by Republic Act No. 9255.Republic Act No. 9255 (An Act Allowing Illegitimate Children to Use the Surname of Their Father)
Approved on February 24, 2004, RA 9255 amended Article 176 of the Family Code to empower an illegitimate child who has been acknowledged by the father to use the latter’s surname. Prior to this enactment, an illegitimate child had to carry the mother’s surname, even if acknowledged by the father.Implementing Rules and Regulations (IRR) of RA 9255
The IRR of RA 9255, issued through Administrative Order No. 1, Series of 2004, outlines the procedure for registering the father’s surname on the child’s birth certificate. These rules are crucial to understanding how parents can lawfully proceed with naming their child and ensuring accurate civil registry documents.Philippine Statistics Authority (PSA) Regulations
The PSA (formerly NSO) is entrusted with maintaining the civil registry system. Birth certificates in the Philippines must conform to the guidelines laid down by the PSA, including the father’s affidavit of acknowledgement or admission of paternity when using the father’s surname for an illegitimate child.
III. Filiation Categories Under Philippine Law
Understanding the distinction between legitimate and illegitimate children is crucial to clarifying the rules for surnames:
Legitimate Children
A child conceived or born during a valid marriage of the parents is considered legitimate. Legitimate children are entitled to use the father’s surname without further formalities.Illegitimate Children
Children born to parents who are not validly married at the time of conception or birth are deemed illegitimate. Nonetheless, the law allows for official recognition through voluntary acknowledgement (or, in exceptional cases, compulsory recognition through court proceedings). If an illegitimate child is acknowledged by the father, RA 9255 allows that child to carry the father’s surname.Legitimated Children
Should the parents of an illegitimate child later contract a valid marriage, the child may become legitimated under certain conditions stated in the law. After legitimation, the child acquires the same status and rights as a legitimate child, including the right to use the father’s surname. This topic may be relevant for couples considering marriage after the birth of a child.
IV. Acknowledgement and Voluntary Recognition of Paternity
Affidavit of Acknowledgement or Admission of Paternity
For an illegitimate child to legally use the father’s surname, the father must clearly acknowledge paternity through an Affidavit of Acknowledgement or Admission of Paternity. This affidavit becomes a formal declaration that the individual named is indeed the child’s biological father.Execution of a Public Document
A public document, such as a notarized affidavit, must be submitted to the civil registrar. The father’s personal presence may be required by the local civil registry to ensure the authenticity of the father’s intention to recognize the child.Timing of Acknowledgement
The acknowledgement can be made at the time of registering the child’s birth or at any point thereafter. Should the father wish to assert his paternal rights long after the child’s birth has been registered, the father may file the necessary documents with the PSA for endorsement and annotation on the child’s birth record.Effects of Acknowledgement
- Surname Use: The child may use the father’s surname in all legal documents, school records, and other relevant papers.
- Successional Rights: Acknowledgement grants the illegitimate child certain inheritance rights, although not on the same level as a legitimate child. The father remains responsible for child support.
- Parental Authority: The Family Code provides that, ordinarily, parental authority over an illegitimate child belongs to the mother. However, acknowledgement by the father can pave the way for deeper paternal involvement in the child’s life, subject to the best interests of the child.
V. Requirements for Using the Father’s Surname Under RA 9255
Child’s Birth Certificate
The birth certificate is a fundamental document that reflects the child’s legal identity. In cases where the parents are not married, the following steps usually apply:- Filling Out the Birth Certificate: Typically, the mother’s name is indicated in the “Mother” field, and the father’s name may be indicated in the “Father” field only if the father acknowledges the child.
- Submission of Documents: Along with the birth certificate form, an affidavit or other official acknowledgement by the father is required if the father’s details, particularly his surname, are to be used.
- Legibility and Accuracy: Ensure that personal information is spelled correctly. Any discrepancy might lead to further administrative or court processes for rectification.
Affidavit of Admission of Paternity (AAP) and Private Handwritten Instrument (PHI)
Depending on the circumstances of birth registration, RA 9255 provides for either an Affidavit of Admission of Paternity (notarized) or a Private Handwritten Instrument that must be signed by the father. The Private Handwritten Instrument may contain the father’s express statement of paternity with clear identification of the child.Joint Affidavit of Legitimation (If Applicable)
In instances where the parents eventually marry, and the child becomes legitimated, a Joint Affidavit of Legitimation may be executed. However, this is only possible if the parents had no legal impediment to marry at the time the child was conceived. This affidavit would be submitted to the civil registrar to convert the child’s status to legitimate.Proof of Identity and Citizenship
The father should present valid proof of identity, citizenship, and civil status (if relevant) to confirm the sincerity and legality of the recognition process.Local Civil Registry Office (LCRO) Protocol
Each LCRO might have specific steps or local practices aligned with the PSA’s guidelines, so it is essential to inquire with local authorities regarding detailed documentary requirements, fees, and processing times.
VI. Common Misconceptions and Clarifications
“Parents Must Be Married for the Child to Use the Father’s Surname”
This is a widespread misconception. While it used to be standard practice that illegitimate children should use the mother’s surname, RA 9255 now explicitly permits the use of the father’s surname as long as paternal recognition is properly executed.“The Father Loses Rights if the Child Uses the Mother’s Surname”
Even if the child initially uses the mother’s surname, the father does not lose the right to acknowledge the child in the future. Once the father completes the acknowledgement, the birth record can be annotated, allowing the child to carry the father’s surname moving forward.“Paternity Cannot Be Proven Without a DNA Test”
While DNA tests may offer scientific certainty, the law does not always require it for paternal recognition. Voluntary acknowledgement via affidavit is often sufficient if uncontested. However, in disputed paternity cases, courts may order DNA tests.“The Father’s Acknowledgement Automatically Grants Visitation or Custody Rights”
Parental authority over an illegitimate child is generally vested in the mother, barring strong reasons to the contrary. A father’s acknowledgement, while conferring surname use and inheritance rights, does not automatically grant custody or equal visitation rights. These may still be subject to mutual agreement or judicial determination based on the child’s best interests.
VII. Process of Rectification or Change in the Child’s Birth Record
If the child was initially registered under the mother’s surname and the father later decides to acknowledge paternity, a correction or annotation process is necessary to reflect the new surname:
Filing of the Affidavit
The father executes an Affidavit of Admission of Paternity, which is then submitted to the LCRO for proper annotation.PSA Endorsement
The LCRO typically forwards the documents to the PSA for endorsement. Once annotated, the PSA issues a new birth certificate indicating the father’s details and the child’s new surname.Time and Fees
Processing times vary depending on the local registry office’s workload, compliance with documentary requirements, and any backlog in the PSA central office. Corresponding fees for notarial services and LCRO or PSA processing may apply.Court Involvement
If there are any disputes or obstacles (e.g., the father contests paternity, or there are contradictions in existing records), court proceedings may become necessary. Court orders are also required if a major discrepancy occurs that demands formal judicial correction.
VIII. Legal Consequences and Advantages of Using the Father’s Surname
Emotional Bonding and Identity
Carrying the father’s surname can enhance the psychological connection between father and child. It can also help the child develop a sense of identity tied to the paternal family.Inheritance and Successional Rights
Under the New Civil Code and the Family Code, an illegitimate child is entitled to receive a portion of the father’s estate, specifically one-half of the share a legitimate child would receive. This right exists regardless of whether the child carries the father’s surname, but acknowledgement typically serves to solidify proof of filiation.Family Relations and Obligations
Acknowledging a child often implies an acceptance of paternal duties, such as moral and financial support, involvement in upbringing, and broader familial recognition by paternal relatives.Documentary Consistency
A consistent legal name is valuable for official documents, including school records, passports, and employment forms. Using the father’s surname from birth helps minimize administrative complexities later in life.
IX. Challenges and Considerations
Ensuring Voluntariness of the Father’s Acknowledgement
Since the mother cannot force the use of the father’s surname if the father does not admit paternity, the father’s willingness to sign an affidavit is a key requirement. Without this recognition, the default rule stands: the child uses the mother’s surname.Proof of Paternity If Disputed
If paternity is questioned, a father’s refusal or hesitation to acknowledge the child may necessitate a legal proceeding to establish filiation. This can be emotionally taxing, time-consuming, and financially burdensome for all parties.Social Stigma
While attitudes are changing, there may still be social stigma attached to children born out of wedlock. Allowing the child to carry the father’s surname may reduce potential discrimination, but social acceptance often depends on community and family values.Future Amendments to Family and Civil Laws
Philippine family law evolves, reflecting shifting societal norms and judicial precedents. Further amendments to RA 9255 or the Family Code could refine or alter current rules.
X. Step-by-Step Summary
Confirm Willingness for Paternal Recognition
Ensure the father is ready to sign all necessary paperwork, demonstrating his voluntary acknowledgement of the child.Prepare Required Documents
Gather the PSA-prescribed birth certificate forms, valid ID proofs, and the Affidavit of Admission of Paternity (if registering the birth after initial registration).Register the Birth or File for Annotation
- If at Birth: During hospital or LCRO registration, indicate the father’s name and submit the required affidavit.
- If Post-Birth: File the affidavit and supporting documents at the LCRO where the birth was recorded, then wait for PSA endorsement and issuance of the updated certificate.
Keep Copies of All Documents
Retain certified true copies or original copies of affidavits, birth certificates, and official receipts for future reference.Consult a Lawyer If Disputes Arise
Should the father refuse to acknowledge the child or contest paternity, a legal consultation is advised to explore possible court remedies.
XI. Frequently Asked Questions (FAQ)
Can we change our child’s surname to the father’s name many years after birth?
Yes. RA 9255 contemplates the possibility that paternal acknowledgement may happen even long after birth registration. The father can file an affidavit of acknowledgement, which, once processed by the LCRO and annotated by the PSA, updates the child’s surname.Is marriage required for the child to use the father’s surname?
No. RA 9255 explicitly allows an illegitimate child to adopt the father’s surname if he acknowledges paternity, irrespective of the parents’ marital status.Can the mother alone decide to use the father’s surname for the child if the father is absent or denies paternity?
No. Philippine law requires the father’s voluntary act of recognition. In its absence, the mother has no legal basis to unilaterally use the father’s surname for the child.What if the father initially signed the birth certificate, but we did not file an affidavit of acknowledgement?
The father’s signature on the birth certificate is a starting point. However, the PSA and LCRO typically require a formal affidavit of acknowledgement to reflect paternal details in the official records. If not done, you may need to complete or rectify the process.Does the child automatically become legitimate if we marry later on?
If the parents had no legal impediment to marry at the time the child was conceived, the child may be legitimated by the subsequent marriage. A Joint Affidavit of Legitimation is typically filed. This changes the child’s status from illegitimate to legitimate in the eyes of the law.
XII. Conclusion
Philippine law strives to recognize and protect the rights of children, regardless of the marital status of their parents. With the enactment of RA 9255, an illegitimate child can legally use the father’s surname as long as paternity is voluntarily acknowledged through the proper channels. This legislative development aims to preserve the child’s sense of identity, provide them with inheritance rights, and encourage paternal responsibility.
Despite lingering misconceptions, nothing categorically prevents parents who are not married from registering the newborn under the father’s surname—provided that the father’s admission of paternity is duly executed. The Family Code’s framework, as clarified by RA 9255 and its IRR, is designed to balance the rights of the child, the father, and the mother.
However, if the father denies paternity or refuses to cooperate, the law still defers to the mother by default, obliging the mother to register the child under her surname. Challenges to paternity, if contested, must be resolved through legal processes.
In light of the possible complexities, it remains prudent for parents to consult legal professionals for advice on paperwork, required documentation, and potential disputes. By understanding the intricacies of the law, families can make informed decisions that safeguard the best interests of their child, reinforce familial bonds, and ensure compliance with all relevant legal provisions.
This legal article is written by a licensed legal professional in the Philippines for informational purposes. Every case is unique, and this content should not be construed as a comprehensive substitute for direct legal counsel.