Under Article 176 of the Family Code, the law used to say that nonmarital children (born outside of a legal marriage) must use their mother’s surname, and that they are also under her parental authority.
Art. 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. The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child. Except for this modification, all other provisions in the Civil Code governing successional rights shall remain in force.
On March 19, 2004, Republic Act No. 9255 was passed, which amended Article 176 to allow illegitimate children to use their father’s surname, to wit:
“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 updated rule says that a child born out of wedlock can use the father’s surname only if the father has legally recognized the child. This recognition can happen in two ways:
- The father is named in the child’s birth certificate (father effectively recognizing the child).
- He makes an admission in a public document or a private handwritten instrument.
Even then, the father has the right to go to court to challenge the child’s filiation, but only while he’s still alive.
Is It Required by Law for the Illegitimate Child to Use his Father’s Surname?
No, it is NOT required.
In Republic v. Capote, GR No. 157043, 2 February 2007, the Supreme Court allowed the minor’s ward to change the minor’s surname to the minor’s mother’s surname. This petition for change of name was granted considering the child was born out of wedlock and there appeared never to have been recognition of filiation from the minor’s father. The best interest of the child was also noted considering the mother’s intention to have the minor to join her in the US.
More importantly, in Grande v. Antonio, GR No. 206248, 18 February 2014, the father had recognized his illegitimate children, but the Supreme Court said the children did not have to use his surname if they did not want to. Thus, the children were given the option to choose the surname they would want to use.
Conclusion
Illegitimate children can use their father’s surname but only if he legally acknowledges them. It is neither automatic nor obligatory. In fact, the law gives the child the option to choose the surname of his or her mother or father, as long as certain requirements are met.
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