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
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