Illegitimate child has to use mother’s surname

Dear PAO,
I recently went to the DFA office to apply for a passport and was declined. I was told that I still need to secure an affidavit to use my father’s surname. I got really confused because although I have my mother’s surname on my birth certificate, I’ve been using my father’s surname ever since, and that was the first time someone told me that.

My parents only got married seven years after I was born. My father was able to secure an Affidavit of Admission of Paternity and an Affidavit for Delayed Registration of Birth. Both of these documents were attached to my birth certificate. Are these documents enough proofs that I am a legitimate child, and have the right to bear my father’s surname? What should I do regarding these concerns?
Christine

Dear Christine,
The law is clear that a child born out of wedlock is illegitimate. An illegitimate child shall use the surname of his/her mother. Nevertheless, he/she may use the surname of his/her father, provided he/she was acknowledged by the latter (Article 176, Family Code of the Philippines as amended by Republic Act No. 9255).

Based on your narration, it is clear that you were an illegitimate child when you were born, since your parents were yet to marry each other at the time and were only able to do so seven years later. Being illegitimate, you shall bear the surname of your mother, but you may use the surname of your father provided that you were recognized by the latter as his child.

Perhaps, this was explained to you at the Department of Foreign Affairs (DFA), when you tried to obtain a passport there. To formally use the surname of your father under the law, you have to register with the Office of the Local Civil Registrar where your Certificate of Live Birth is registered, the fact that you were expressly recognized by your father, together with the Affidavit to Use the Surname of the Father, among other things.

But the subsequent marriage of your parents, assuming that they have no legal impediment to marry each other during the time that you were conceived up to the time that they were married, through the process of legitimation, changed your status from illegitimate to legitimated.

By way of legitimation, an illegitimate child, by operation of law is considered legitimate, by virtue of the subsequent marriage of his/her parents, granting that during the period of his/her conception until the time of the said marriage, his/her parents had no legal impediment to marry. This is according to Articles 177 and 178 of the Family Code of the Philippines as amended by Republic Act 9858, which provides:

“Article 177. 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, or were so disqualified only because either or both of them were below eighteen (18) years of age, may be legitimated.

“Art. 178. Legitimation shall take place by a subsequent valid marriage between parents. The annulment of a voidable marriage shall not affect the legitimation.”

Being legitimated, you are entitled to all the rights and privileges enjoyed by a legitimate child and the same shall retroact to the time of your birth. One of such rights is to bear the surname of your father (Articles 174(1), 179 and 180, Family Code of the Philippines).

To register your subsequent legitimation, all you have to do is to visit the Office of the Local Civil Registrar where your Certificate of Live Birth is registered. You just have to comply with all the requirements and follow the procedure established for the purpose. Once registered, you may now officially use the surname of your father.

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