What surname should illegitimate children use?
Illegitimate children should use the surname and be under the parental authority of their mother. (Article 176, Family Code)
When may illegitimate children use the surname of their father?
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. (Article 176, Family Code as amended by R.A. 9255)
Does the use of father's surname grant legitimacy to child?
No. Even if the biological father allows the use of his surname, the child still remains illegitimate. The use of the father’s surname alone will not change his status. Parental authority still belongs to the mother, which means custody belongs to her.
Could the father who acknowledged his illegitimate children compel them to use his surname?
No. Even if the biological father acknowledged his illegitimate children, he cannot force them to use his surname. In the case of Grace Grande v. Patricio Antonio, G.R. No. 206248, February 18, 2014, the Court held that Art. 176 gives illegitimate children the right to decide if they want to use the surname of their father or not. It is not the father or the mother who is granted by law the right to dictate the surname of their illegitimate children. Nothing is more settled than that when the law is clear and free from ambiguity, it must be taken to mean what it says and it must be given its literal meaning free from any interpretation.
On its face, Art. 176, as amended, is free from ambiguity. And where there is no ambiguity, one must abide by its words. The use of the word "may" in the provision readily shows that an acknowledged illegitimate child is under no compulsion to use the surname of his illegitimate father. The word "may" is permissive and operates to confer discretion upon the illegitimate children.
In the same case, the court voided the provision in RA 9255’s IRR which makes the use of the father’s surname automatic and mandatory since this is contrary to the express permissive wording of RA 9255 amending Art 176 which states that ‘illegitimate children may use the surname of their father if their filiation has been expressly recognized by the father’. The court said the hornbook rule is that an administrative issuance cannot amend a legislative act.
Could the father who acknowledged his illegitimate children compel them to use his surname?
No. Even if the biological father acknowledged his illegitimate children, he cannot force them to use his surname. In the case of Grace Grande v. Patricio Antonio, G.R. No. 206248, February 18, 2014, the Court held that Art. 176 gives illegitimate children the right to decide if they want to use the surname of their father or not. It is not the father or the mother who is granted by law the right to dictate the surname of their illegitimate children. Nothing is more settled than that when the law is clear and free from ambiguity, it must be taken to mean what it says and it must be given its literal meaning free from any interpretation.
On its face, Art. 176, as amended, is free from ambiguity. And where there is no ambiguity, one must abide by its words. The use of the word "may" in the provision readily shows that an acknowledged illegitimate child is under no compulsion to use the surname of his illegitimate father. The word "may" is permissive and operates to confer discretion upon the illegitimate children.
In the same case, the court voided the provision in RA 9255’s IRR which makes the use of the father’s surname automatic and mandatory since this is contrary to the express permissive wording of RA 9255 amending Art 176 which states that ‘illegitimate children may use the surname of their father if their filiation has been expressly recognized by the father’. The court said the hornbook rule is that an administrative issuance cannot amend a legislative act.
If the father does not recognize the illegitimate child, what should appear as his middle name in the birth certificate?
If the father does not recognize the child, the entry for middle name in the birth certificate must be left blank. The Court held that:
Our laws on the use of surnames state that legitimate and legitimated children shall principally use the surname of the father. The Family Code gives legitimate children the right to bear the surnames of the father and the mother, while illegitimate children shall use the surname of their mother, unless their father recognizes their filiation, in which case they may bear the father’s surname.
Our laws on the use of surnames state that legitimate and legitimated children shall principally use the surname of the father. The Family Code gives legitimate children the right to bear the surnames of the father and the mother, while illegitimate children shall use the surname of their mother, unless their father recognizes their filiation, in which case they may bear the father’s surname.
Applying these laws, an illegitimate child whose filiation is not recognized by the father bears only a given name and his mother’ surname, and does not have a middle name. The name of the unrecognized illegitimate child therefore identifies him as such. It is only when the illegitimate child is legitimated by the subsequent marriage of his parents or acknowledged by the father in a public document or private handwritten instrument that he bears both his mother’s surname as his middle name and his father’s surname as his surname, reflecting his status as a legitimated child or an acknowledged child. (In Re: Petition for Change of Name and/or Correction of Entry in the Civil Registry of Julian Lin Carulasan Wang, G.R. 159966, March 30 2005, 454 SCRA 2155; Republic of the Philippines vs Trinidad R. A. Capote, G.R. No. 157043, February 2, 2007)
Read:
Re: Petition for Change of Name of Julian Lin Carulasan Wan Case Digest
Republic vs. Capote Case DigestRead:
Re: Petition for Change of Name of Julian Lin Carulasan Wan Case Digest
What if the mother erroneously wrote her middle name as the middle name of her child in the latter's birth certificate. How should the mistake be rectified?
To rectify the mistake, the mother may file a verified petition in court to correct the birth certificate of her child in accordance with Rule 108 of the Rules of Court. The said Rule covers cases which involves cancellation or correction of entries in the civil register relating to birth, marriages and deaths, among others which may not be administratively corrected under Republic Act No. 9048 as amended by Republic Act No. 10172.
0 Comments
Post a Comment