Change of Surname for a Child Born Out of Wedlock After Parents’ Marriage

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Dear Attorney,

I hope this letter finds you well. I am writing to seek legal advice regarding the surname of my firstborn child. My child was born out of wedlock, and at the time of birth, I registered the child under my surname because the father was not present during the registration and, as a result, did not sign the birth certificate. Now that I am married to the child’s father, I would like to know whether it is possible to change my child's surname in the birth certificate to that of my husband’s surname, considering that we are now married.

I would greatly appreciate your guidance on this matter, particularly on the legal steps I need to follow and any documentation required for this process.

Thank you in advance for your assistance.

Sincerely,
A Concerned Mother

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Legal Discussion: Changing the Surname of a Child Born Out of Wedlock Upon the Parents’ Marriage

In the Philippines, the legal framework surrounding the legitimacy of a child, parental rights, and the child’s surname is governed by several laws, including the Family Code of the Philippines and Republic Act No. 9255, which amended Article 176 of the Family Code. These laws provide specific guidelines on how the surname of a child born out of wedlock may be modified, especially in the context of the subsequent marriage of the parents.

I. Status of a Child Born Out of Wedlock

Under the Family Code, a child born to unmarried parents is classified as an illegitimate child. Article 176 of the Family Code, before its amendment, stated that illegitimate children shall use the surname of their mother. This default position applied irrespective of the relationship between the biological parents at the time of birth.

However, with the enactment of Republic Act No. 9255 in 2004, Article 176 was amended to allow illegitimate children to use the surname of their biological father, provided that the father acknowledges paternity through various means, such as signing the child’s birth certificate, executing an affidavit of acknowledgment, or other means outlined under the law.

It is essential to emphasize that a child remains illegitimate even if the father acknowledges paternity, unless the parents subsequently marry each other. This distinction is critical for understanding the options available for changing the child’s surname after the parents marry.

II. Legitimation by Subsequent Marriage

One of the most significant legal effects of a subsequent marriage between the biological parents of a child born out of wedlock is legitimation. Under Article 177 of the Family Code, legitimation occurs when a child born out of wedlock is legitimated by the subsequent valid marriage of the parents. Legitimation confers upon the child the status of a legitimate child, granting the child the right to use the father’s surname and enjoy all the rights and privileges of a legitimate child.

For legitimation to occur, certain conditions must be met:

1. No Legal Impediment at the Time of Conception – The parents must have been free to marry at the time of the child’s conception. This means that neither parent should have been married to another person, nor should there have been any other impediment such as consanguinity that would have prevented the marriage.

2. Subsequent Valid Marriage – The parents must contract a valid marriage after the child’s birth. A valid marriage under Philippine law requires compliance with essential and formal requisites, such as legal capacity, consent, authority of the solemnizing officer, and proper documentation.

Once legitimation occurs, it operates retroactively to the time of the child’s birth. This means that, legally, the child is considered legitimate from birth, and the rights and status of the child are the same as if the child were born to married parents.

III. Process of Legitimation and Change of Surname

In your case, since you are now married to your child’s biological father, and assuming there was no legal impediment to your marriage at the time of your child’s conception, your child is deemed legitimated by operation of law under Article 177 of the Family Code. The legitimation is automatic and does not require a court order. However, administrative steps must be taken to update the child’s birth records, including the change of surname.

The process of legitimation involves the following steps:

1. Preparation of the Affidavit of Legitimation – Both parents must execute an Affidavit of Legitimation, attesting to the fact that the child was conceived and born out of wedlock, and that they have subsequently contracted a valid marriage. The affidavit must include pertinent details such as the names of the parents, the child’s name and date of birth, and the date and place of the parents’ marriage. This document serves as the primary legal instrument to effect legitimation.

2. Submission to the Civil Registrar – The Affidavit of Legitimation, along with a certified true copy of the parents’ marriage certificate, must be submitted to the Local Civil Registry Office (LCRO) where the child’s birth was registered. The Local Civil Registrar will then annotate the birth certificate to reflect the child’s legitimation.

3. Change of Surname in the Birth Certificate – As part of the legitimation process, the child’s surname in the birth certificate will be changed to that of the father’s surname, provided the birth certificate currently reflects the mother’s surname. Once the birth certificate is annotated to show the legitimation, the child will legally use the father’s surname moving forward.

4. Issuance of a New Birth Certificate – After the annotation of the birth certificate, the civil registrar will issue a new copy of the birth certificate with the changes duly reflected. This new birth certificate will show the child’s status as legitimate and will indicate the father’s surname.

IV. Implications of Legitimation

Legitimation has far-reaching implications for the child, particularly in the areas of inheritance, custody, and parental authority. A legitimated child has the same rights as a legitimate child, including:

• Inheritance Rights – A legitimated child is entitled to inherit from both parents under the rules of intestate succession, just like a legitimate child. This means the child can claim a share of the estate of both parents if they die without a will.

• Parental Authority – Both parents will exercise joint parental authority over the legitimated child. This joint authority covers all aspects of the child’s welfare, including education, health, and discipline.

• Support – The legitimated child is entitled to financial support from both parents, in accordance with the Family Code’s provisions on parental support obligations.

V. Scenarios Where Legitimation is Not Applicable

It is important to note that legitimation is not available in certain situations. These include:

• Parents Were Under Legal Impediment at the Time of Conception – If one or both parents were married to other people at the time of the child’s conception, legitimation is not available, even if they subsequently marry each other. The child remains illegitimate under such circumstances.

• Subsequent Void Marriage – If the subsequent marriage of the parents is declared null and void (for instance, due to psychological incapacity or lack of a valid marriage license), legitimation does not occur. In this case, the child remains illegitimate.

In these cases, the child may still use the father’s surname if the father acknowledges paternity, but the child’s status will remain illegitimate.

VI. Other Options for Changing the Child’s Surname Without Legitimation

In situations where legitimation is not possible or applicable, such as when the parents cannot marry or the child was born under circumstances that prevent legitimation, there are still ways to change the child’s surname. Under Republic Act No. 9255, an illegitimate child can use the surname of the father, provided that the father acknowledges paternity.

This process typically involves the following:

• Acknowledgment in the Birth Certificate – If the father’s name is not currently reflected on the child’s birth certificate, the father may execute an Affidavit of Acknowledgment or an Affidavit to Use the Surname of the Father (AUSF). The affidavit must be submitted to the Local Civil Registrar for annotation on the birth certificate.

• Court Intervention – In certain cases, such as when the mother or another party opposes the change of surname, it may be necessary to petition the court for approval to change the child’s surname.

VII. Conclusion

To summarize, in your case, the fact that you and your child’s father are now married means that your child can be legitimated by operation of law, assuming no legal impediments existed at the time of the child’s conception. The legitimation process involves the execution of an Affidavit of Legitimation, submission to the Local Civil Registrar, and the annotation of the child’s birth certificate to reflect the change of surname. Once legitimated, your child will enjoy all the rights of a legitimate child, including the right to use the father’s surname.

However, if legitimation is not possible due to legal impediments, the option to change your child’s surname through the acknowledgment process under Republic Act No. 9255 remains available.

I hope this discussion has been helpful in providing a comprehensive understanding of your options. Should you need further assistance or clarification, do not hesitate to consult your legal counsel for advice specific to your circumstances.