Dad’s income determines support for his illegitimate children

Dear PAO,
After our marriage, my husband told me that he has two illegitimate children and they are currently in the custody of their grandparents. I also learned that my husband had an agreement with the mother of his children that he will shoulder the school expenses of the children and he will still be sending them their allowances. Lately, I observed that the mother demanded too much from my husband and more often I feel that it is getting excessive. I am troubled with this kind of set-up and I want to set things straight. My question is, can we make this agreement legal so that finally the amount of support is pegged to a certain amount? 
Sarah

Dear Sarah,
Our law recognizes the rights of illegitimate children. One of these rights is the right to demand for support. Under the law, support comprises everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping with the financial capacity of the family (Article 194, Family Code). Further, the education of the person entitled to be supported shall include his schooling or training for some profession, trade or vocation, even beyond the age of majority. Support for education also includes the fare in going to and from the school.

Although the law gives illegitimate children the right to be supported, the amount of support, however, is dependent on the financial capacity of the giver and the needs of the person entitled to support. The law does not peg the amount of support because the amount of support shall be in proportion to the resources or means of the giver and to the necessities of the recipient (Article 201, Family Code). That is, the mother of your husband’s illegitimate children cannot ask for more than what your husband can afford to give. This comes from the principle that a person cannot give more than what he has.

You mentioned that there is already an agreement reached by your husband and the mother of his illegitimate children and you want this to be in writing so that you can fix the amount. This can be done provided that both parties are agreeable to the terms and conditions as set forth therein. If the amount of support is pegged to a reasonable amount consistent with the capacity of your husband and the needs of his children as of the moment, the rights of both sides will be protected and future grudges may be prevented. But the amount that they may agree upon now is only for the time being because the law provides that the amount of support can be changed as circumstances warrant. It can be reduced or increased proportionately according to the necessities of the recipient and the resources or means of the giver (Article 202, Family Code).

We advise you to inform your husband of your predicament so that he can speak with the mother of his children and come up with an agreement that will be beneficial to both of them. Once an agreement is reached, every party to the agreement shall be bound by the same.

We need to remind you however that the amount of support never becomes final. It may be reduced when the resources of your husband and the necessities of his illegitimate children shrink but may also be increased should there be a need to increase the same. Be that as it may, the amount of support shall always be dependent on the means and resources of the giver and the necessities of the recipient.

We hope that we were able to address your query. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

Illegitimate child entitled to share from father’s inheritance

Dear PAO,
I have a daughter with my ex-boyfriend. My ex-boyfriend acknowledged our daughter as his child and he even signed my daughter’s birth certificate. I recently found out, however, that my ex-boyfriend already passed away and that he left another child with his wife. Because of this, I want to know if there is any chance that my daughter can get any inheritance from his father since I know for a fact that my ex-boyfriend is well-off. I tried to communicate and discuss this with the family of my ex-boyfriend but I was told that my child has no right to inherit from her father and that she is not going to get anything. I just want to know if my child has a right to claim inheritance from her father even if she is an illegitimate child and how much will my daughter get from her father. I hope you can advice me on this matter. Thank you!             
Delilah

Dear Delilah,
Philippine laws provide for the rights of children, both legitimate and illegitimate, to inherit from their parents. Article 887 of the Civil Code of the Philippines enumerates the list of compulsory heirs, including illegitimate children along with legitimate children of the deceased, as among those entitled to compulsory inheritance from pieces of property left by the deceased parents. And in relation to this, the portion of the property left by a deceased parent for their children is called legitime, which is defined by law as:

“Legitime is that part of the testator’s property which he cannot dispose of because the law has reserved it for certain heirs, who are, therefore, called compulsory heirs” (Art. 886, Civil Code of the Philippines).

As stated in this cited law, legitimes are reserved for compulsory heirs. And since illegitimate children, such as your daughter, are recognized under the law as compulsory heirs, then it follows that she is also entitled to a share in the property left by her father that is reserved by law for her. Thus, there is no basis in the claim of your ex-boyfriend’s family that your daughter has no right to inherit from her father.

Note however that before illegitimate children can be considered as compulsory heirs, there is still a requirement for them to duly prove their filiation with their deceased parent. And in your situation, since you have mentioned that the father of your daughter signed her birth certificate, this is an acknowledgment of his relation as a father, which is a sufficient proof of his filiation to your daughter. Therefore, the status of being an illegitimate child of your daughter, by itself, is not an impediment to her right to inherit from her deceased father.

Finally, with regard to the share of your daughter from the legitime of his father, it is important to note that the law also provides for the size of the share to be received by an illegitimate child compared with the share of a legitimate child. The law states that an illegitimate child shall receive a share equivalent to half of the share that will be received by a legitimate child who in turn shall receive a share of half of the value of the whole legitime (Art. 895, Civil Code of the Philippines). As an example, if the total value of the legitime left by a deceased is two million pesos (P2,000,000.00), a legitimate child shall receive one million pesos (P1,000,000.00) from it, while an illegitimate child is entitled to only five hundred thousand pesos (P500,000.00), which is half of the value received by the legitimate child. Thus, although your daughter is entitled to a share in the legitime, the size of her share is limited by this provision of the law.

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.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

Married woman not obliged to use husband’s surname

Dear PAO,
Is it mandatory for a wife to use her husband’s surname? 
Nica

Dear Nica,

Under the law, a married woman may use the surname of her husband. This is clearly provided by the New Civil Code of the Philippines, which states:

“Art. 370. A married woman may use:

(1) Her maiden first name and surname and add her husband’s surname, or

(2) Her maiden first name and her husband’s surname or

(3) Her husband’s full name, but prefixing a word indicating that she is his wife, such as ”Mrs.””

It is clear that the above law gives a married woman the option to use the surname of her husband. Since it is discretionary, a married woman is not obliged to use her husband’s surname. In the case of Maria Virginia V. Remo vs. The Honorable Secretary of Foreign Affairs (G.R. No. 169202, March 5, 2010), the Supreme Court explained:

“Clearly, a married woman has an option, but not a duty, to use the surname of the husband in any of the ways provided by Article 370 of the Civil Code. She is therefore allowed to use not only any of the three names provided in Article 370, but also her maiden name upon marriage. She is not prohibited from continuously using her maiden name once she is married because when a woman marries, she does not change her name but only her civil status. Further, this interpretation is in consonance with the principle that surnames indicate descent.”

It is settled in the aforesaid case, however, that if a married woman started to use the surname of her husband in her passport, she cannot revert to the use of her maiden name unless her marriage to her husband has already been annulled, declared null and void or she was divorced by her husband and the divorce was already recognized in the Philippines. The Supreme Court in the said case also explained:

“In the case of renewal of passport, a married woman may either adopt her husband’s surname or continuously use her maiden name. If she chooses to adopt her husband’s surname in her new passport, the DFA [Department of Foreign Affairs] additionally requires the submission of an authenticated copy of the marriage certificate. Otherwise, if she prefers to continue using her maiden name, she may still do so. The DFA will not prohibit her from continuously using her maiden name.

Once a married woman, however, opted to adopt her husband’s surname in her passport, she may not revert to the use of her maiden name, except in the cases enumerated in Section 5(d) of Republic Act 8239. These instances are: (1) death of husband, (2) divorce, (3) annulment or (4) nullity of marriage. Since petitioner’s marriage to her husband subsists, she may not resume her maiden name in the replacement passport. Otherwise stated, a married woman’s reversion to the use of her maiden name must be based only on the severance of the marriage.”

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 in your concern.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net