Q. Hello po Atty. R. Wong. My husband has illegitimate children and carrying my husband’s surname. From what I gathered, under Republic Act No. 9255, illegitimate child can only carry the father’s name with signed consent or notarized document.
Given that there is no marriage between the children’s father and mother, “and” there is no proof of consent on children’s birth certificate:
(1) Can children’s birth certificate amended and removes the mother’s surname back to her maiden name.
(2) Remove the alleged date of marriage of mother and father that is non-existent.
(3) Can children’s surname can be amended back to their mother’s maiden name granting that there is no consent from the father.
The reason I am asking are for property that are acquired before marriage and I cannot allow illegitimate children to be part of properties that are duly right to child/children within our legitimate marriage only. Please advice. Marisa.
An: Hello Ms Marisa, assuming that the illegitimate children of your husband were born on or after August 3, 1988 which is the effectivity of the Family Code and assuming further that at the time of such birth your husband was still a Filipino citizen, then it is legally correct to say, that illegitimate children shall bear the surname of their biological mother pursuant to the existing law.
However, if the illegitimate children were born before August 3, 1988, the used of surname of the father of an illegitimate child was not strictly observed then under the provisions of the Civil Code. Thus, it is not surprising to note that quite a number of illegitimate children have used the surname of their presumptive father before the effectivity of the Family Code.
Kindly take note that Republic Act No. 9255 which allows the used of the family name of the father by an illegitimate child provided his written consent under oath was made, came to effect only on March 19, 2004. With the above background, let us now come to your questions.
Can illegitimate children’s surnames in the birth certificates be amended to reflect the mother’s surname only and such other corresponding amendments in the entries in the birth certificates like, the date of a non-existing marriage?
The entries of the birth certificate may be amended to the effect the surnames of the said children be changed to that of their mother but only with the lawful order of the Court. The corresponding amendment may include, the entries regarding the non-existing date of marriage, etc…
However, it appears that the main reason why you want the surnames of the illegitimate children be changed to that of their mother, is to prevent them from inheriting from the estate of their father. And in effect, exclusively reserved whatever properties or estate that your husband may have to his legitimate family only. Which means for you as the legal spouse and your legitimate children only? With due respect, this position is NOT legally tenable.
Under the law, illegitimate children are entitled to inherit from the estate of their deceased father in the same manner that legitimate children are entitled to .The only difference is the amount of the sharing of the inheritance. Under Art. 176 of the Family Code, the share of an illegitimate child is equivalent ½ of the share of the legitimate child. For example, if the share of the legitimate child $2.00, the illegitimate child gets $1.00. Thus, for this reason, the only significance that can be achieved in the changing or amendments of the entries of the birth certificates of the illegitimate is the use of the surname of the mother. The said amendment in the birth certificate does not have any adverse effect on the right of the illegitimate children to inherit from the estate of their father nor can such amendment be used to prevent or circumvent the right of the illegitimate children to inherit from their father.
The only way, to set aside this presumptive right of the illegitimate children to inherit from your husband is to impugn their paternity or filiations. Meaning that you husband is NOT actually the father of the illegitimate children. For this purpose, your husband must go Court and prove the same. In the case of Berciles vs. System, 128 SCRA 93, the Supreme Court ruled that “ birth certificate not signed by the alleged father therein indicated is not competent evidence of paternity.”
However, if in the past, there were evidence showing that your husband, have actually recognized the illegitimate children as his , either by his express , overt or implied acts , then impugning the paternity or filiations of the illegitimate children would be a futile exercise, as for all intents and purposes, the said illegitimate children being the children of the putative father born outside of wedlock, are entitled to inherit from him as his “compulsory heirs” as well .
Thank your for writing and looking forward you’ll find the above in order.
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