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.
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