Dear PAO,
I am a single mother and I’d like to ask about the
surname of my newborn son. Can my son use the surname of his biological
father even if we are not married? I was informed that my son can use
his father’s surname even if there is no marriage between the parents. I
hope your office can advise me on this matter.
Mara
Dear Mara,
To
answer your query, we must first clarify the status of your son. Since
you are not married to your son’s father, it is safe to assume that your
son is an illegitimate child. Therefore, the applicable provision of
the law is Article 176 of the Family Code of the Philippines which
provides for the use of surname for illegitimate children. According to
this provision:
“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. Thus, 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. Applying this to your situation,
should your son be able to use his father’s surname, this alone will not
change the status of your son since he shall remain an illegitimate
child.
Again, we find it necessary to mention that this opinion is
solely based on the facts you have narrated and our appreciation of the
same. The opinion may vary when the facts are changed or elaborated.
We hope that we were able to enlighten you on the matter.
source: Manila Times' Column
Friday, June 28, 2013
Wednesday, June 19, 2013
Child born to married woman is her husband’s
Dear PAO,
I am waiting for the result of my annulment but I am planning to have a baby with my present boyfriend, who is single and will acknowledge the baby. Will there be any problem on the processing for the legitimation if my baby is born while my annulment is still on process? When can we start processing the legitimation of our child?
Jaja
Dear Jaja,
Under the Family Code, an illegitimate child who is born to parents who are not married at the time of his birth may become a legitimate child upon the subsequent marriage of his parents following the provision of Article 177 of the Family Code, which states that ONLY children conceived and born outside of wedlock of parents who, at the time of the conception of the former, were not disqualified by any impediment to marry each other may be legitimated.
The application for the annotation of the legitimation in the child’s birth certificate may be processed immediately after the marriage of the parents in the local civil registry of the place where the child was born.
Based from the foregoing, a child with your present boyfriend, who would be born while the annulment of your previous marriage is on process, cannot be legitimated by your subsequent marriage because of such existing marriage, which disqualifies you from marrying his father.
Moreover, there is a presumption in the Family Code that a child who is conceived or born during the marriage of parents is considered their legitimate child even if the mother may have declared against its legitimacy or may have been sentenced as an adulteress (Article 164 and Article 167, Family Code).
The above provision of law means that a child born to a woman who is married is presumed to be her legitimate child with her husband. This presumption may be overcome if the father would impugn the legitimacy of the child within a limited period. The child would be considered legitimate if said husband failed to impugn said legitimacy.
In order to avoid any difficulty or problem regarding the status of your child, it is best that you wait for your marriage to be annulled and after the lapse of three hundred (300) days thereafter.
The lapse of three hundred days is required to avoid any controversy which could arise in connection with Article 168 of the Family Code, which states that:
Art. 168. If the marriage is terminated and the mother contracted another marriage within three hundred days after such termination of the former marriage, these rules shall govern in the absence of proof to the contrary:
(1) A child born BEFORE one hundred eighty (180) days after the solemnization of the subsequent marriage is considered to have been conceived during the former marriage, provided it be born within three hundred (300) days after the termination of the former marriage;
(2) A child born AFTER one hundred eighty (180) days FOLLOWING the celebration of the subsequent marriage is considered to have been conceived during such marriage, even though it be born within the three hundred (300) days after the termination of the former marriage.
It is moreover suggested for you not to get married immediately after the issuance of the decree of annulment to avoid prosecution for the crime of premature marriage punishable under Article 351 of the Revised Penal Code, which provides for penalty to any woman who shall marry within three hundred and one (181) days AFTER her marriage shall have been annulled or dissolved.
Please be reminded that the above legal opinion is solely based on our appreciation of the problem that you have presented. The opinion may vary when other facts are stated.
source: Manila Times' Column of Atty Persida Acosta with emphasis provided by Broker Rem
I am waiting for the result of my annulment but I am planning to have a baby with my present boyfriend, who is single and will acknowledge the baby. Will there be any problem on the processing for the legitimation if my baby is born while my annulment is still on process? When can we start processing the legitimation of our child?
Jaja
Dear Jaja,
Under the Family Code, an illegitimate child who is born to parents who are not married at the time of his birth may become a legitimate child upon the subsequent marriage of his parents following the provision of Article 177 of the Family Code, which states that ONLY children conceived and born outside of wedlock of parents who, at the time of the conception of the former, were not disqualified by any impediment to marry each other may be legitimated.
The application for the annotation of the legitimation in the child’s birth certificate may be processed immediately after the marriage of the parents in the local civil registry of the place where the child was born.
Based from the foregoing, a child with your present boyfriend, who would be born while the annulment of your previous marriage is on process, cannot be legitimated by your subsequent marriage because of such existing marriage, which disqualifies you from marrying his father.
Moreover, there is a presumption in the Family Code that a child who is conceived or born during the marriage of parents is considered their legitimate child even if the mother may have declared against its legitimacy or may have been sentenced as an adulteress (Article 164 and Article 167, Family Code).
The above provision of law means that a child born to a woman who is married is presumed to be her legitimate child with her husband. This presumption may be overcome if the father would impugn the legitimacy of the child within a limited period. The child would be considered legitimate if said husband failed to impugn said legitimacy.
In order to avoid any difficulty or problem regarding the status of your child, it is best that you wait for your marriage to be annulled and after the lapse of three hundred (300) days thereafter.
The lapse of three hundred days is required to avoid any controversy which could arise in connection with Article 168 of the Family Code, which states that:
Art. 168. If the marriage is terminated and the mother contracted another marriage within three hundred days after such termination of the former marriage, these rules shall govern in the absence of proof to the contrary:
(1) A child born BEFORE one hundred eighty (180) days after the solemnization of the subsequent marriage is considered to have been conceived during the former marriage, provided it be born within three hundred (300) days after the termination of the former marriage;
(2) A child born AFTER one hundred eighty (180) days FOLLOWING the celebration of the subsequent marriage is considered to have been conceived during such marriage, even though it be born within the three hundred (300) days after the termination of the former marriage.
It is moreover suggested for you not to get married immediately after the issuance of the decree of annulment to avoid prosecution for the crime of premature marriage punishable under Article 351 of the Revised Penal Code, which provides for penalty to any woman who shall marry within three hundred and one (181) days AFTER her marriage shall have been annulled or dissolved.
Please be reminded that the above legal opinion is solely based on our appreciation of the problem that you have presented. The opinion may vary when other facts are stated.
source: Manila Times' Column of Atty Persida Acosta with emphasis provided by Broker Rem
Tuesday, June 18, 2013
Spouse who left conjugal home not entitled to support
Dear PAO,
My father died last year and I am one of his legitimate children, who are all of legal age. My parents were separated 27 years ago. We have no communication with my mother until the dying time of my father when she appeared and asked for forgiveness from my father. She left us to live with another man, whom she had two children. Later on, my mother also left that man and lived with another man.
My questions are: Can my mother still claim for the SSS death benefits of my father even if they had been separated for 27 years? Can my brother and I still be beneficiaries in the SSS even if we are both of legal age?
Van
Dear Van,
The death benefit of a deceased member of the Social Security System (SSS) is granted to his primary beneficiaries and, in the absence thereof, to his secondary beneficiaries. The primary beneficiaries are his/her dependent spouse until he or she remarries and dependent children either legitimate, legitimated, legally adopted, or illegitimate. A spouse is considered “dependent” if he or she is the legal spouse, who by law is entitled for support, while a child is considered “dependent” if he is unmarried, not gainfully employed and has not reached 21 years of age, or if above 21 years of age, he is congenitally or while still a minor has been permanently incapacitated and incapable of self-support, physically or mentally. On the other hand, the secondary beneficiaries of deceased SSS member are his dependent parents or such other person designated by such member, in the absence of the parents (Section 8[e], Section 8[k], Section 13 of Republic Act [R.A] No. 8282 or the “Social Security Act of 1997”).
Based from the foregoing, a wife shall only be entitled to the death benefit of his deceased husband if she is the legal wife who is entitled by law for support and such benefit shall be granted to her until she remarries. The legal wife, under Article 195 of the Family Code, is entitled for support from her spouse. However the spouse who leaves the conjugal home or refuses to live therein, without just cause, shall not be entitled to support (Article 100, Family Code). On this ground, your mother may not be entitled to the death benefit from the SSS by reason of the death of your father because, as you have stated, your mother left your house 27 years ago to live with other men.
As to your entitlement to the death benefit, you and your brother cannot anymore claim said death benefit as primary beneficiaries because you are not considered as dependent children anymore. However, you may be entitled to the said benefit if your father has designated you and your brother as beneficiaries in his record with the SSS assuming that your paternal grandparents are also dead. As to this matter, you may inquire with the SSS Office regarding the beneficiaries which were designated by your father regarding death benefits.
Please be reminded that the above legal opinion is solely based on our appreciation of the problem that you have presented. The opinion may vary when other facts are stated.
source: Manila Times' Column by PERSIDA ACOSTA
My father died last year and I am one of his legitimate children, who are all of legal age. My parents were separated 27 years ago. We have no communication with my mother until the dying time of my father when she appeared and asked for forgiveness from my father. She left us to live with another man, whom she had two children. Later on, my mother also left that man and lived with another man.
My questions are: Can my mother still claim for the SSS death benefits of my father even if they had been separated for 27 years? Can my brother and I still be beneficiaries in the SSS even if we are both of legal age?
Van
Dear Van,
The death benefit of a deceased member of the Social Security System (SSS) is granted to his primary beneficiaries and, in the absence thereof, to his secondary beneficiaries. The primary beneficiaries are his/her dependent spouse until he or she remarries and dependent children either legitimate, legitimated, legally adopted, or illegitimate. A spouse is considered “dependent” if he or she is the legal spouse, who by law is entitled for support, while a child is considered “dependent” if he is unmarried, not gainfully employed and has not reached 21 years of age, or if above 21 years of age, he is congenitally or while still a minor has been permanently incapacitated and incapable of self-support, physically or mentally. On the other hand, the secondary beneficiaries of deceased SSS member are his dependent parents or such other person designated by such member, in the absence of the parents (Section 8[e], Section 8[k], Section 13 of Republic Act [R.A] No. 8282 or the “Social Security Act of 1997”).
Based from the foregoing, a wife shall only be entitled to the death benefit of his deceased husband if she is the legal wife who is entitled by law for support and such benefit shall be granted to her until she remarries. The legal wife, under Article 195 of the Family Code, is entitled for support from her spouse. However the spouse who leaves the conjugal home or refuses to live therein, without just cause, shall not be entitled to support (Article 100, Family Code). On this ground, your mother may not be entitled to the death benefit from the SSS by reason of the death of your father because, as you have stated, your mother left your house 27 years ago to live with other men.
As to your entitlement to the death benefit, you and your brother cannot anymore claim said death benefit as primary beneficiaries because you are not considered as dependent children anymore. However, you may be entitled to the said benefit if your father has designated you and your brother as beneficiaries in his record with the SSS assuming that your paternal grandparents are also dead. As to this matter, you may inquire with the SSS Office regarding the beneficiaries which were designated by your father regarding death benefits.
Please be reminded that the above legal opinion is solely based on our appreciation of the problem that you have presented. The opinion may vary when other facts are stated.
source: Manila Times' Column by PERSIDA ACOSTA
Saturday, June 15, 2013
Young child should stay with mother
A common love story scenario usually occurs between two people who
work and spend too much time together. In this case, a married
businessman in Angeles City had an illicit relationship with his
secretary. Their union resulted in three children, a son and two
daughters.
Their relationship was not a secret. The businessman’s wife was aware of her husband’s extramarital activities as the secretary even brought their son to the legitimate family’s house to introduce him to the legal wife. After this, all three illegitimate children were accepted by the legal family and freely brought to the businessman’s house.
One summer, the businessman asked the secretary if he could take their son to Boracay with his legitimate family. The secretary agreed. After the trip however, the businessman refused to give back their son and even enrolled him in a school for the upcoming school year. The secretary filed a habeas corpus case to get her son back. The Regional Trial Court granted custody of the minor to his natural mother, the secretary, and ordered the businessman to give a monthly support of P3,000 for the support of his illegitimate children.
The Court of Appeals (CA) reversed the decision, holding that since the businessman was more financially well off than the secretary, it was in the best interest of the son to remain under the custody of his father.
The Supreme Court overturned the CA, reiterating Article 213 of the Family Code: No child under seven years of age shall be separated from the mother unless the court finds compelling reasons to order otherwise.
The fact that the businessman is well-off is not a reason for depriving the [secretary] of the custody of her children, especially considering that she has been able to rear and support them on her own since they were born . . . [The mother] and her children may not be enjoying a life of affluence that private respondent promises if the child lives with him. It is enough, however, that [the mother] is earning a decent living and is able to support her children according to her means.
The Court further reminded that the recognition of an illegitimate child may be a ground for ordering the father to give support to the child, but not for granting him custody of the child.
[The businessman] observed his son “to be physically weak and pale because of malnutrition and deprivation of the luxury and amenities he was accustomed to when in the former custody of the [the businessman].” He prayed that he be given the custody of the child so that he can provide him with the “proper care and education…”
[He] has expressed willingness to support the minor child. The order for payment of allowance need not be conditioned on the grant to him of custody of the child. Under Art. 204 of the Family Code, a person obliged to give support can fulfill his obligation either by paying the allowance fixed by the court or by receiving and maintaining in the family dwelling the person who is entitled to support unless, in the latter case, there is a ‘moral or legal obstacle thereto’… Indeed, if private respondent loves his child, he should not condition the grant of support for him on the award of his custody to him (David v. Court of Appeals, G.R. No. 111180, 16 November 1995, J. Mendoza).
source: Manila Times' by Benchpress
Their relationship was not a secret. The businessman’s wife was aware of her husband’s extramarital activities as the secretary even brought their son to the legitimate family’s house to introduce him to the legal wife. After this, all three illegitimate children were accepted by the legal family and freely brought to the businessman’s house.
One summer, the businessman asked the secretary if he could take their son to Boracay with his legitimate family. The secretary agreed. After the trip however, the businessman refused to give back their son and even enrolled him in a school for the upcoming school year. The secretary filed a habeas corpus case to get her son back. The Regional Trial Court granted custody of the minor to his natural mother, the secretary, and ordered the businessman to give a monthly support of P3,000 for the support of his illegitimate children.
The Court of Appeals (CA) reversed the decision, holding that since the businessman was more financially well off than the secretary, it was in the best interest of the son to remain under the custody of his father.
The Supreme Court overturned the CA, reiterating Article 213 of the Family Code: No child under seven years of age shall be separated from the mother unless the court finds compelling reasons to order otherwise.
The fact that the businessman is well-off is not a reason for depriving the [secretary] of the custody of her children, especially considering that she has been able to rear and support them on her own since they were born . . . [The mother] and her children may not be enjoying a life of affluence that private respondent promises if the child lives with him. It is enough, however, that [the mother] is earning a decent living and is able to support her children according to her means.
The Court further reminded that the recognition of an illegitimate child may be a ground for ordering the father to give support to the child, but not for granting him custody of the child.
[The businessman] observed his son “to be physically weak and pale because of malnutrition and deprivation of the luxury and amenities he was accustomed to when in the former custody of the [the businessman].” He prayed that he be given the custody of the child so that he can provide him with the “proper care and education…”
[He] has expressed willingness to support the minor child. The order for payment of allowance need not be conditioned on the grant to him of custody of the child. Under Art. 204 of the Family Code, a person obliged to give support can fulfill his obligation either by paying the allowance fixed by the court or by receiving and maintaining in the family dwelling the person who is entitled to support unless, in the latter case, there is a ‘moral or legal obstacle thereto’… Indeed, if private respondent loves his child, he should not condition the grant of support for him on the award of his custody to him (David v. Court of Appeals, G.R. No. 111180, 16 November 1995, J. Mendoza).
source: Manila Times' by Benchpress
Divorced Filipino spouse can remarry
Dear PAO,
I married a foreigner but retained my Filipino citizenship. Due to our differences, we obtained absolute divorce abroad. May I have it recognized in our country? What are the requirements?
Maggie
Dear Maggie,
As a rule, our laws do not allow divorce. However, an exception is provided in the second paragraph of Article 26 of the Family Code. It states that:
“Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to marry, the Filipino spouse shall likewise have capacity to remarry under Philippine law.”
It is clear from that above provision that our State will only recognize the divorce if it is the alien spouse who filed or initiated the absolute divorce. An absolute divorce initiated by the Filipino spouse does not fall within the exception. Hence, it will not be recognized in our country for the reason that it is against public policy (Cang vs. Court of Appeals, 293 SCRA 128).
Note, however, that the bar does not apply to a former Filipino citizen who has been naturalized in a foreign country. He/she may initiate a divorce. In such a situation, the Supreme Court ruled that the reckoning point is NOT the citizenship of the parties at the time of marriage, but their citizenship at the time the divorce is obtained (Republic vs. Orbecido, G.R. No. 154380, October 5, 2005). Hence, such case will be viewed as a divorce between two foreign citizens which will be governed by the laws of their respective nationalities.
Applying the foregoing to your case, you failed to mention who initiated the divorce. Nonetheless, if it is you who initiated the divorce, then it will not be recognized in our country. On the contrary, if it is your foreigner spouse who initiated the divorce, then it can be recognized in our country. In such a case, you have to initiate a proceeding in court for recognition of the foreign divorce.
Please note that our courts are not duty bound to recognize foreign divorce decree or judgment. Our courts do not take judicial notice of foreign judgments and laws. This means that the foreign judgment and its authenticity must be proven as facts under our rules on evidence. In this regard, Section 24, Rule 132 of the Rules of Court requires as proof of a public record or document, presentation of an official publication of the document or a copy attested by the officer having legal custody of the documents. If the copies of official records are not kept in the Philippines, the Rules of Court further requires that:
1) it be accompanied by a certificate issued by the proper Philippine diplomatic or consular officer stationed in the country where the record is kept; and,
2) authenticated by the seal of his office.
Bear in mind also, that there are two things you have to prove: the foreign divorce decree itself, and the foreign law allowing the divorce. Evidence on both must be presented so that the petition for recognition of the foreign divorce decree or judgment may be granted (Corpuz vs. Sto. Tomas, G.R. No. 186571, August 11, 2010).
We hope that we were able to enlighten you on the matter. Please be reminded that the above legal opinion is solely based on our appreciation of the problem that you have presented. The opinion may vary when other facts are stated.
source: Manila Times' by Persida Acosta
I married a foreigner but retained my Filipino citizenship. Due to our differences, we obtained absolute divorce abroad. May I have it recognized in our country? What are the requirements?
Maggie
Dear Maggie,
As a rule, our laws do not allow divorce. However, an exception is provided in the second paragraph of Article 26 of the Family Code. It states that:
“Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to marry, the Filipino spouse shall likewise have capacity to remarry under Philippine law.”
It is clear from that above provision that our State will only recognize the divorce if it is the alien spouse who filed or initiated the absolute divorce. An absolute divorce initiated by the Filipino spouse does not fall within the exception. Hence, it will not be recognized in our country for the reason that it is against public policy (Cang vs. Court of Appeals, 293 SCRA 128).
Note, however, that the bar does not apply to a former Filipino citizen who has been naturalized in a foreign country. He/she may initiate a divorce. In such a situation, the Supreme Court ruled that the reckoning point is NOT the citizenship of the parties at the time of marriage, but their citizenship at the time the divorce is obtained (Republic vs. Orbecido, G.R. No. 154380, October 5, 2005). Hence, such case will be viewed as a divorce between two foreign citizens which will be governed by the laws of their respective nationalities.
Applying the foregoing to your case, you failed to mention who initiated the divorce. Nonetheless, if it is you who initiated the divorce, then it will not be recognized in our country. On the contrary, if it is your foreigner spouse who initiated the divorce, then it can be recognized in our country. In such a case, you have to initiate a proceeding in court for recognition of the foreign divorce.
Please note that our courts are not duty bound to recognize foreign divorce decree or judgment. Our courts do not take judicial notice of foreign judgments and laws. This means that the foreign judgment and its authenticity must be proven as facts under our rules on evidence. In this regard, Section 24, Rule 132 of the Rules of Court requires as proof of a public record or document, presentation of an official publication of the document or a copy attested by the officer having legal custody of the documents. If the copies of official records are not kept in the Philippines, the Rules of Court further requires that:
1) it be accompanied by a certificate issued by the proper Philippine diplomatic or consular officer stationed in the country where the record is kept; and,
2) authenticated by the seal of his office.
Bear in mind also, that there are two things you have to prove: the foreign divorce decree itself, and the foreign law allowing the divorce. Evidence on both must be presented so that the petition for recognition of the foreign divorce decree or judgment may be granted (Corpuz vs. Sto. Tomas, G.R. No. 186571, August 11, 2010).
We hope that we were able to enlighten you on the matter. Please be reminded that the above legal opinion is solely based on our appreciation of the problem that you have presented. The opinion may vary when other facts are stated.
source: Manila Times' by Persida Acosta
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