The misdeeds or oversights of parents cannot and should not disgrace their children.

It is for this basic precept that Philippine laws have granted non-marital children (formerly called "illegitimate" children) a myriad of rights akin to — if not totally similar — those of marital children (formerly called "legitimate" children). Notably, their appellation has been changed to a more appropriate description of their parents' civil status at the time of their birth rather than the birth's supposed "legitimacy."

Non-marital children are now permitted to carry their father's surname upon compliance with requirements set by law and related regulations.

While Article 176 of the Family Code of the Philippines provides non-marital children's successional rights, Republic Act 9255, which took effect in 2004, boosted these rights by allowing them to use their father's surname if their filiation has been recognized by the latter in accordance with some preconditions.

The Philippine Statistics Authority or PSA, consequently, revised the implementing rules of RA 9255 in 2016 to better effectuate the wisdom of the law, especially considering the ruling of the Supreme Court in the case of Grace M. Grande v Patricio T. Antonio (G.R. No. 206248, 18 February 2014), which states that neither the father nor the mother is granted the right to dictate the surname of their non-marital children. Instead, the law gives non-marital children the right to decide whether or not they will use their father's surname.

Just recently, PSA issued Memorandum Circular No. 2023-14, which further revised the implementing rules, providing that prevailing rules shall have retroactive effect for all births occurring within or outside the Philippines where a Filipino is concerned.

The Office of the Civil Registrar General also amended the same implementing rules through Administrative Order No. 1, series of 2023, so that existing laws and regulations about the use of non-marital children of the surname of their father shall apply to those born during the effectivity of the Family Code of the Philippines or from 3 August 1988 with (a) unregistered births and (b) registered births, where non-marital children use the surname of their mother.

Considering these changes, should non-marital children prefer to use the surname of their father, there must exist an express acknowledgment by the latter of the former through any of the following: (a) affidavit of admission of paternity found at the back of the child's certificate of live birth; (b) affidavit of acknowledgment; or (c) private handwritten instrument signed by the father with his express recognition of the child as his for the rest of his life. These documents shall be filed before the local civil registry where the birth is registered or, in case of unregistered births, where the child is born. Absent the express acknowledgment from the father, the non-martial child cannot use the father's surname.

How, then, is an admission of paternity filed?

The father, mother, or non-marital child of legal age may file the affidavit of admission of paternity or affidavit of acknowledgement.

In the case of a private handwritten instrument, the same should be personally filed by the father. If the father is deceased, the private handwritten instrument may be filed by the non-marital child, who is of legal age, or the non-marital child's mother.

Should the local civil registry find the requirements complete and without issue after review, the non-marital child's new surname shall be annotated on the existing certificate of live birth; it shall not be supplied on the portion intended for the last name.

The above rules do not include the assignment of a middle name for a non-marital child. An additional Supplemental Report should be filed to supply the child's middle name on the certificate of live birth.

It must be remembered, however, that the non-marital children's use of the surname of their father does not necessarily make them marital children in legal contemplation — it plainly permits them to publicly use such surname, e.g., in their identity documents like passport, school and employment records, and other documents. There is a separate process for the conversion of a child's status from non-marital to marital called legitimation.

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For more of Dean Nilo Divina's legal tidbits, please visit www.divinalaw.com. For comments and questions, please send an email to cabdo@divinalaw.com.