Category Archives: Paternity & Filiation

Should there be no distinction between legitimate and illegitimate children?

A news item from the Philippine Star reveals that House Bill 2355 was filed by Albay 2nd District Rep. Al Francis Bichara ‘which seeks to treat legitimate and illegitimate children as co-equal.‘The last portion of the report cites Congressman Bichara as saying that ‘aside from being marginalized as a result of this unwarranted label, children born out of marriage have limited rights and privileges especially with respect to successional rights.

Presently, the intestate share and legitime of an illegitimate child is one half of that of a legitimate child, and there is a barrier of intestate succession under Article 992 of the Civil Code between illegitimate children and the legitimate relatives of his/her parent.

In relation to the proposed amendment, it is best to remember that the distinction between legitimate and illegitimate children do not only deal with successional rights -  there are other distinctions found in Philippine law between legitimate and illegitimate children. Some of these distinctions include:

1. Which parent exercises parental authority over the child – default parental authority over an illegitimate child resides only in the mother under Article 176 of the Family Code as amended by RA 9255 even if the child is recognized by the father, while default parental authority over legitimate children reside in both parents under Article 211 of the Family Code.

2. Questions over whether the conjugal partnership or absolute community should be liable for the amount of support a parent gives to his/her illegitimate child – under Articles 94(9) and 122 3rd paragraph of the Family Code, conjugal partnership / absolute community property are only secondarily liable for the support of illegitimate children since primary responsibility falls on the parent’s exclusive property; on the other hand, support of legitimate children are a primary liability of the conjugal partnership of gains and absolute community of property under Articles 94(1) and Art 121(1) of the Family Code.

3. The use of the father’s name as surname – the legitimate child is obligated to use the father’s surname since Article 174 of the Family Code says that the legitimate child shall have the right ‘[t]o bear the surnames of the father and the mother, in conformity with the provisions of the Civil Code on Surnames‘ and Article 364 of the Civil Code uses the mandatory word ‘shall‘ in stating that ‘[l]egitimate and legitimated children shall principally use the surname of the father;‘ on the other hand, recognized illegitimate children under Article 176 of the Family Code as amended by RA 9255 may choose to use or not to use their father’s surname since Article 176 of the Family Code says that ‘illegitimate children may use the surname of their father if their filiation has been expressly recognized‘.

4. The prohibition of certain marriages – under Article 38(7) of the Family Code, a marriage between an adopted child and a legitimate child of the adopter is void as against public policy, while there is no such prohibition between a marriage between an adopted child and an illegitimate child of the adopter, Article 38(7) of the Family Code being an express statutory exception to the general rule is that “[t]he relationship created by the adoption is between only the adopting parents and the adopted child and does not extend to the blood relatives of either party”: see Sayson vs CA (G.R. Nos. 89224-25, 23 January 1992).

5. The requirement of consent of the adopter’s children to the adoption – under Section 9 of RA 8552 the adopter’s legitimate children ten years of age or over must give their consent to the adoption but the consent of the adopter’s illegitimate children of the same age is necessary only if the illegitimate children are ‘living with said adopter and the latter’s spouse‘.

6. The use of a middle name – An unrecognized illegitimate child may be unjustly discriminated in school because his or her name does not contain a middle name. In Wang vs Cebu City Civil Registrar (G.R. No. 159966.  March 30, 2005) it was stated that

[A]n illegitimate child whose filiation is not recognized by the father bears only a given name and his mother’s 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 illegitimate child.

In the same case of Wang it was stated that ‘[t]he Family Code gives legitimate children the right to bear the surnames of the father and the mother.

7. Proof of filiation – A legitimate child is one who is born or conceived during the parent’s marriage; once operative facts are proven to give rise to the presumption of legitimacy (one operative fact being that the child is born or conceived of the wife during the marriage), then the presumption of legitimacy arises without need of any other proof. Illegitimacy requires either a voluntary recognition (under the first paragraph of Article 172 of the Family Code, it is a voluntary recognition found in a record of birth,  public document or a private handwritten instrument and signed by the parent concerned), or a compulsory recognition through a court judgment (requiring proof under the 2nd paragraph of Article 172 of the Family Code - ‘[t]he open and continuous possession of the status of a legitimate child’ and ‘[a]ny other means allowed by the Rules of Court and special laws’).

 

- Atty. Alex Andrew P. Icao

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Filed under Absolute community system of property, Conjugal partnership of gains, Consequence of filiation, Distinction between legitimate and illegitimate children, Paternity & Filiation, Property relations, Uncategorized, use of surname or middle name

A legitimate child may use the mother’s surname after the father’s surname

If the legitimate child’s first name is Jose, the mother’s surname Reyes and the father’s surname Garcia, may the child be registered as Jose Garcia Reyes?

Article 364 of the New Civil Code states that ‘[l]egitimate and legitimated children shall principally use the surname of the father’. It was established in the case of In re Adoption of Stephanie Nathy Astorga Garcia (G.R. No. 148311.  March 31, 2005) 3rd div Sandoval-Gutierrez J that the use of the mother’s surname as middle name by a legitimate child is merely discretionary. In other words, in registering the name of a child, the child’s name may or may not bear the mother’s surname. By way of exception, the use of a middle name or the mother’s surname is mandatory only in the case of descendants bearing identical first names with ascendants under Article 375 of the New Civil Code.

Should it be decided that the child bear the mother’s surname, the law does not expressly state that the mother’s surname be a middle name or should precede the father’s family name.

The Supreme Court in In re Adoption of Stephanie Nathy Astorga Garcia quoted the Minutes of the Joint Meeting of the Civil Code and Family law Committees (August 10, 1985, pp. 16-18), as follows:

However, as correctly pointed out by the OSG, the members of the Civil Code and Family Law Committees that drafted the Family Code recognized the Filipino custom of adding the surname of the child’s mother as his middle name.  In the Minutes of the Joint Meeting of the Civil Code and Family Law Committees, the members approved the suggestion that the initial or surname of the mother should immediately precede the surname of the father, thus

“Justice Caguioa commented that there is a difference between the use by the wife of the surname and that of the child because the father’s surname indicates the family to which he belongs, for which reason he would insist on the use of the father’s surname by the child but that, if he wants to, the child may also use the surname of the mother.

Justice Puno posed the question:  If the child chooses to use the surname of the mother, how will his name be written?  Justice Caguioa replied that it is up to him but that his point is that it should be mandatory that the child uses the surname of the father and permissive in the case of the surname of the mother.

Prof. Baviera remarked that Justice Caguioa’s point is covered by the present Article 364, which reads:

Legitimate and legitimated children shall principally use the surname of the father.

Justice Puno pointed out that many names change through no choice of the person himself precisely because of this misunderstanding.  He then cited the following example: Alfonso Ponce Enrile’s correct surname is Ponce since the mother’s surname is Enrile but everybody calls him Atty. Enrile.  Justice Jose Gutierrez David’s family name is Gutierrez and his mother’s surname is David but they all call him Justice David.

Justice Caguioa suggested that the proposed Article (12) be modified to the effect that it shall be mandatory on the child to use the surname of the father but he may use the surname of the mother by way of an initial or a middle name.  Prof. Balane stated that they take note of this for inclusion in the Chapter on Use of Surnames since in the proposed Article (10) they are just enumerating the rights of legitimate children so that the details can be covered in the appropriate chapter.

x x x

Justice Puno remarked that there is logic in the simplification suggested by Justice Caguioa that the surname of the father should always be last because there are so many traditions like the American tradition where they like to use their second given name and the Latin tradition, which is also followed by the Chinese wherein they even include the Clan name.

x x x

Justice Puno suggested that they agree in principle that in the Chapter on the Use of Surnames, they should say that initial or surname of the mother should immediately precede the surname of the father so that the second name, if any, will be before the surname of the mother.  Prof. Balane added that this is really the Filipino way.  The Committee approved the suggestion.[12][Minutes of the Joint Meeting of the Civil Code and Family law Committees, August 10, 1985, pp. 16-18] (Emphasis supplied)

The emphasis was supplied in the Decision itself. The underscoring is supplied here. Note that it was stated in the Decision that ‘the members approved the suggestion that the initial or surname of the mother should immediately precede the surname of the father’. The suggested article was never approved by Congress since Congress did not amend the New Civil Code. Arguably, then, under the underscored portion of the Minutes of the Joint Meeting of the Civil Code and Family law Committees interpreting Article 364 of the New Civil Code (particularly where ‘Justice Puno posed the question: If the child chooses to use the surname of the mother, how will his name be written?  Justice Caguioa replied that it is up to him but that his point is that it should be mandatory that the child uses the surname of the father and permissive in the case of the surname of the mother’ and ‘Prof. Baviera remarked that Justice Caguioa’s point is covered by the present Article 364’), it is permissible for a legitimate child to use his or her mother’s surname and that surname may follow the father’s surname.

Article 174 of the Family Code in stating that ‘[l]egitimate children shall have the right … (1) To bear the surnames of the father and the mother, in conformity with the provisions of the Civil Code on Surnames’ defers to the New Civil Code provisions on Surnames, which includes Article 364 of the New Civil Code.

 

- Atty. Alex Andrew P. Icao

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May an unrecognized illegitimate child use the surname of the father?

Article 176 of the Family Code as amended by Republic Act 9255 which took effect on March 19, 2004 states that:

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.

Under Article 175 of the Family Code, only voluntarily recognized illegitimate children are expressly entitled to use their father’s surname.

But may an unrecognized illegitimate child use the surname of the father, arguing from the case of Republic vs Lim (GR No. 153883, 13 Jan 2004)? In the Lim case, an illegitimate child, who was not allowed to use the surname of his father (presumptively under the provisions of Article 175 of the Family Code), was nevertheless allowed to use the surname of the father on the basis that the child has used the surname since childhood. The Court cited the earlier case of Pabellar vs Republic (GR No. L-27298, 4 March 1976) and invoked ‘Sec. 1 of Commonwealth Act No. 142, the law regulating the use of aliases’ where ‘a person is allowed to use a name “by which he has been known since childhood’. Republic vs Lim was decided before the effectivity of Republic Act 9255. Before amendment of Article 176 of the Family Code by Republic Act 9255, even if there was a voluntary recognition, an illegitimate child cannot use the father’s surname — this was the law applicable in Lim. Republic Act 9255 (which took effect on March 19, 2004) now allows an illegitimate child to use the father’s surname in cases of voluntary recognition. It is submitted that an unrecognized illegitimate child cannot be allowed to use his father’s surname notwithstanding the child’s use of the surname since childhood, since this will create confusion — association with the father, when in the eyes of the law no relationship exists between the father and the child. Lim itself disallows the use of the father’s surname ‘as would give the false impression of family relationship’ which ‘would in great probability cause prejudice or future mischief to the family whose surname it is that is involved or to the community in general’.

 

- Atty. Alex Andrew P. Icao

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Presumption of legitimacy during legal separation?

Can there be a presumption of legitimacy if the child is conceived of the wife when the spouses are legally separated?

It may be recalled that children born or conceived of the wife during a marriage are presumed legitimate. This presumption of legitimacy is based on the provisions of Articles 164 1st par, 166, 167, 170, and 171 of the Family Code.

The right of coition (sexual intercourse) generally exists between the husband and wife as implied from their obligation ‘to live together’ (Article 68 Family Code). Arguably, this may be the reason why the husband must prove physical impossibility of sexual intercourse under Article 166 of the Family Code. However, such right of coition and right to live together is inexistent when a legal separation has been finally decreed by the Court (see Article 63(1) of the Family Code which says that ‘The spouses shall be entitled to live separately from each other, but the marriage bonds shall not be severed’).

It is arguable then, that when the spouses are legally and de facto separated, there is no presumption of legitimacy that attaches when legal and de facto separation coincide during the time of concepcion of the child. Since there is no presumption that attaches, there is no need for the husband to impugn any presumed legitimacy by adducing evidence enumerated under Article 166 of the Family Code.

Against the arguments above, it may be argued that the presumption of legitimacy does not depend upon the right of sexual access, since Article 164 of the Family Code expressly states that children conceived or born during the marriage are legitimate. Previously, under the New Civil Code, there was a provision (Article 261) which stated that ‘There is no presumption of legitimacy or illegitimacy of a child born after three hundred days following the dissolution of the marriage or the separation of the spouses. Whoever alleges the legitimacy or the illegitimacy of such child must prove his allegation’. (underscoring supplied). The underlined phrase was not carried over to Article 169 of the Family Code.

 

- Atty. Alex Andrew P. Icao

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Can DNA evidence overcome the presumption of legitimacy in a collateral proceeding?

It is not disputed that DNA evidence may be used by the husband (or in exceptional cases his heirs) under Article 166(2) of the Family Code to impugn the child’s legitimacy in a direct action, provided it is brought within the prescriptive period.

But, can DNA evidence overcome the presumption of legitimacy in a collateral proceeding? Previous decisions [for example, De Jesus vs Estate of Juan Gamboa Dizon (G.R. No. 142877.  October 2, 2001) 3rd div Vitug J] have declared that a child who is presumed legitimate (having been born or conceived from the wife during the marriage) cannot in a collateral proceeding impugn the presumption of legitimacy by participating in or by initiating an action that is predicated upon the child’s not being a legitimate child – such as an action for compulsory recognition against a man who is supposedly the child’s true but illegitimate father, or participating in an action (eg, settlement of estate or partition) where the child wants to ask for his inheritance from an alleged illegitimate father. This is because legitimacy can only be assailed in a direct action by the husband (or in exceptional cases his heirs) within the prescriptive period.

However, in the case of Estate of Rogelio G. Ong vs Diaz (G.R. No. 171713, 17 Dec 2007) 3rd div Chico-Nazario J, the Supreme Court in a case that stemmed from a complaint for compulsory recognition with prayer for support pending litigation filed by a minor child (represented by her mother who was lawfully wedded to a Japanese national at the time of the child’s birth) against the putative illegitimate father said that “The presumption of legitimacy of the child, however, is not conclusive and consequently, may be overthrown by evidence to the contrary” and furthermore that “with the advancement in the field of genetics, and the availability of new technology, it can now be determined with reasonable certainty whether Rogelio is the biological father of the minor, through DNA testing“.

There may be room for argument that the presumption of legitimacy can be overcome by DNA evidence, even in a collateral proceeding. The conclusiveness of DNA evidence did not yet exist when the provisions on the presumption of legitimacy and the requisites of impugning the presumption were developed by the framers of the Civil Code. Arguably, the reason why the law defers to the legal husband’s decision on whether or not to file the action to impugn the child’s legitimacy, is because the legal husband’s indecision (ostensibly to protect his family’s honor) is reflective of the less conclusive nature of pre-DNA evidence.

On the other side of the fence, the rationale why only the husband can question the presumption of legitimacy is because ‘[h]e is the one directly confronted with the scandal and ridicule which the infidelity of his wife produces; and he should decide whether to conceal that infidelity or expose it, in view of the moral and economic interest involved’ [(Tison vs CA  (G.R. No. 121027. July 31, 1997) 2nd div Regalado J] is arguably independent of the conclusiveness of any evidence to prove illegitimacy. Whether the  husband is certain or uncertain as to his wife’s offspring, the law defers to his motives in not directly bringing the action to impugn the child’s legitimacy within the proper period. After all, it is for the husband (or in exceptional cases his heirs) to decide whether or not ‘to protect innocent offspring from the odium of illegitimacy’ (quote appears in Liyao vs Tanhoti-Liyao (G.R. No. 138961. March 7, 2002) 2nd div De Leon Jr J citing 10 Am Jur 2d, Bastards § 10 at 850). Even blood-typing, which is also conclusive evidence as to non-paternity, has been there for quite some time already.

 

- Atty. Alex Andrew P. Icao

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