Does the Use of father’s surname grant legitimacy to child?

What is an illegitimate child?

A child who is born of parents not married to each other or born out of wedlock is an illegitimate child.

Children conceived and born outside a valid marriage are illegitimate, unless otherwise provided in the Family Code of the Philippines (Article 165 of the Family Code).

  Who are considered illegitimate children?

The following are considered illegitimate children:

1. Children born to couples who are not legally married or of common-law marriages;
2. Children born of incestuous marriages;
3. Children born of bigamous marriages;
4. Children born of adulterous relations between parents;
5. Children born of marriages void for reason of public policy under Article 38 of the Family Code;
6. Children born of couples below 18, where they are married or not;
7. Children born of other void marriages under Article 15 unless otherwise provided.

(OCRG. Cir. No. 89-13, 17 July 1989)

Are there different kinds of illegitimate children?

Yes. There are two kinds of illegitimate children. They are:

     1. An unrecognized illegitimate child – the child is not acknowledged by his biological father, and thus has to use the surname of his mother.

     2. A recognized illegitimate child – the child is recognized or acknowledged by his father. He is allowed to use the surname of his father. The filiation can be recognized by the father through:

      i)        The recognition of the father of the child’s paternity through the record of birth appearing in the civil register;

     ii)      When admission is made in a public document;

    iii)    When admission is made in a private handwritten document.

What do you mean by paternity and filiation?

Paternity and filiation refers to the relationship existing between parent and child. Filiation may be by nature or adoption. Children may be legitimate or illegitimate. 

How can filiation be proven?

Filiations of legitimate (or illegitimate) children are established by any of the following:

1. The record of birth appearing in the civil registry or a final judgment
2. An admission of legitimate (or illegitimate) filiation in a public document or a private handwritten instrument and signed by the parent concerned.

What if the child has no such proofs to prove his filiation to his biological father?

In the absence of any of the above evidence, such legitimate or illegitimate filiation may be proved by:

1. Open and continuous possession of the status of a legitimate or illegitimate child;
2. Any other means allowed by the Rules of Court and special laws. (Article 172 of the Family Code)

Does the Use of father’s surname grant legitimacy to child?

“Illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled to support in conformity with this Code. However, illegitimate children may use the surname of their father if their filiation has been expressly recognized by the father through the record of birth appearing in the civil register, or when an admission in a public document or private handwritten instrument is made by the father. Provided, the father has the right to institute an action before the regular courts to prove non-filiation during his lifetime. The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child” (As amended by Republic Act No. 9255).

It is important to note that based on this cited provision, the general rule is that the mother’s surname shall be used by an illegitimate child. However, Republic Act No. 9255 amended this law to include a provision which now allows an illegitimate child to use his father’s surname if the father expressly recognizes the child as his own in a written document.

your son may use his father’s surname if the father signed the birth certificate of your son, or if he acknowledged it in a public document or a private handwritten document.

If, on the other hand, the father does not recognize your son, then the general rule shall prevail wherein your surname shall be used by your son. Furthermore, jurisprudence provides that the entry for the middle name of an illegitimate child’s birth certificate must be left blank if the father does not recognize the child. (Republic of the Philippines vs. Trinidad R.A. Capote February 2007).

Also note that the cited provision does not grant legitimacy to a child. Thus, even if an illegitimate child may use the surname of his father, the child’s status as an illegitimate will not change.