Surname Of Illegitimate Child

According to the Philippine Family Law, an illegitimate child is one born out of wedlock by parents who have legal impediments to marry each other. With this status, Article 176 of the Family Code mandates that the child use the surname of his mother.

However, Republic Act 9255 which took effect on 19 March 2004, amended the Family Code in this wise:

Article 176. 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.”

The implementing rules and regulations of the above law mandate the registration of the public documents except the record of birth, evidencing the recognition of the illegitimate child in order to give effect to the change of surname. The processes involved are detailed below:

The persons allowed to file the public document or the Affidavit to Use the Surname of the Father (AUSF) are as follows:1) father; 2) mother; 3) child if of age; or 4) the guardian.

Guardian refers to a person lawfully invested with the power, and charged with the duty, of taking care of one who, for defect of age, understanding, or self-control, is considered incapable in administering his own affairs. This term also refers to those authorized to exercise substitute parental authority over the child in default of parents or a judicially appointed guardian as set forth in the Family Law Philippines.

A public document, on the other hand, refers to the affidavit of recognition executed by the father such as the Affidavit of Admission of Paternity or the Affidavit of Acknowledgment.

The Affidavit to Use the Surname of the Father (AUSF) is the affidavit attesting to the intention to use the father’s name.

Three instances are contemplated by the rules, namely:

1. If the public document or AUSF was executed within the Philippines and the illegitimate child was also born in the country, then the filing should be done in the Local Civil Registry Office (LCRO) of the place where the child was born.
2. If the public document or AUSF was executed outside the Philippines, but the illegitimate child was born in the country, then the filing should be done in the LCRO of Manila.
3. If the illegitimate child was born outside the Philippines, the filing should be done at the LCRO of Manila, regardless of the place where the public document or AUSF was executed.

The following documents shall be filed at the LCRO:

1. certificate of live birth with accomplished Affidavit of Acknowledgment/Admission of Paternity at the back;
2. public document; and 3) AUSF, including all supporting documents.

After complying with the above mentioned requirements, the illegitimate child or his representative still needs to undergo the process elucidated below in order for the child to be allowed to use the surname of the father:

In case of births not yet registered, the Philippine Family Law states that the illegitimate child will only be allowed to use his father’s surname under the following conditions:

1. A public document must be executed by the father , either at the back of the Certificate of Live Birth or in a separate instrument; or
2. In cases where the admission of paternity is made through a private handwritten instrument, the registration must be supported by the following:
• AUSF;
• consent of the illegitimate child if already eighteen (18) years old or over at the time of filing; and
• any two (2) of the following documents showing clearly the paternity between the father and the child: a) employment records; b) SSS/GSIS records; c) Insurance; d) certification of membership in any organization; e) statement of assets and liabilities; or f) income tax return (ITR)

On the other hand, in case of births previously registered under the surname of the mother, the rules provide the following:

• If the father expressly recognized the child, the latter shall be allowed to use the surname of the father upon submission of the accomplished AUSF.
• If the father did not expressly recognize the child, the latter must submit a public document or a private handwritten instrument backed up by documents previously enumerated in order to be allowed to use his father’s surname.

With respect to the consent of the illegitimate child, the Philippine Family Law requires it in case he already attained the age of majority, that is, at least eighteen (18) years of age. The consent may likewise be contained in a separate, duly notarized instrument. The exception to this rule is, when filiation has been recognized by the father.