Illegitimate child can use father’s surname

Dear PAO,

I would like to seek advice regarding my husband’s mistress whom he had a child with. Can the mistress seek support from my husband for their child even if the child doesn’t use my husband’s surname? Related to this, can the mistress’s child still have my husband’s surname in his birth certificate even after the lapse of a few years from the time of his birth? Lastly, can I sue the mistress of my husband for her continuous harassment of my family and for continuously sleeping around with my husband? Thank you for your advice!
Ida

Dear Ida,
The illegitimate child of your husband may claim support from your husband if he expressly recognizes the child as his own. Should your husband acknowledge his mistress’s child, this carries the obligation on his part to give support to his child and even include him among his heirs for purposes of succession (Article 105, Family Code of the Philippines, Article 887, Civil Code of the Philippines). On the other hand, should your husband refuse to acknowledge the said child, then the mistress first needs to prove the filiation of her child to your husband in the manner set forth by law before claiming the child’s right to support from your husband.

With regard to the use of your husband’s surname by the child of his mistress, the law provides that an illegitimate child may use his father’s surname if the father expressly recognizes the child as his own in a written document. The length of time before a father acknowledges his filiation will not affect the child’s right to use his father’s name as long as he was acknowledged by his biological father. Thus, the child of your husband’s mistress may use your husband’s surname if your husband signed the birth certificate of the said child, or if he voluntarily acknowledges his filiation in a public document or a private handwritten document (Republic Act No. 9255).

As to your desire to file a legal action against the mistress of your husband for her alleged harassment to your family, the Civil Code of the Philippines recognizes the right to file a suit for damages caused by the disturbance of family life, to wit:

“Article 26. Every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons. The following and similar acts, though they may not constitute a criminal offense, shall produce a cause of action for damages, prevention and other relief:

(1) xxx;

(2) Meddling with or disturbing the private life or family relations of another;

(3) xxx;

(4) xxx.”

Finally, you may also file a criminal case for concubinage against the mistress of your husband for her continuous sexual relation with your husband (Art. 334, Revised Penal Code of the Philippines). Please note, however, that should you decide to file such a criminal case, your husband is required to be included as an accused in the criminal complaint since while the mistress is considered to be a concubine, the crime of concubinage is primarily committed by a husband who has sexual relations with a woman not his wife.

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.