Dear Atty. Nico,

I just recently discovered that my surname in my birth certificate was under my mother’s maiden name and not under my father’s name. This is despite the fact that my parents are both legally married before I was born.

When I inquired the reason behind it, my mother she that she and my father were not in good terms at the time she registered my birth. Nevertheless, they reconciled thereafter.

What do I need to do to resolve this legal dilemma? I would appreciate your immediate response.

Alma

Dear Alma,

In a recent jurisprudence, the Court ruled that filing a petition under Rule 108 of the Rules of Court is the proper remedy to establish a child’s filiation, “as long as the issues are properly threshed out in appropriate adversarial proceedings.”

In the case of General vs. Local Civil Registrar of San Jose Del Monte, Bulacan, et al., it was emphasized that although Article 164 of the Family Code, which states that “children conceived or born during the marriage are legitimate” is not conclusive and can be rebutted or overthrown, the same may only be refuted only by evidence of physical impossibility of coitus between the husband and wife within the first 120 days of the 300 days which immediately preceded the birth of the child.

Furthermore, in the case of a child born during the subsistence of a marriage, the concepts of legitimacy and filiation necessarily converge; that before paternity or filiation with the husband may be rejected, the presumption of legitimacy must first be successfully impugned in a proper action and by the persons authorized by law. Until such impugnation, the child is deemed the legitimate offspring of the spouses.

Finally, it bears to emphasize that the corrections sought do not create a new civil status but merely cause the civil register to reflect the true and legally presumed status of Patricia as a legitimate child born during her parents’ marriage. Simple stated, the changes will not create legitimacy but merely reflect a legitimacy that already exists under the law.

In light of the foregoing, it is proper that you, having been born during the subsistence of a valid marriage between your parents, is quasi-conclusively presumed to be their legitimate and marital child. Hence, as a legitimate child, you are entitled to use the surname of your father by operation of Article 174 of the Family Code.

Consequently, you are entitled as well to have your birth certificate corrected to reflect your real surname and the fact of your parents’ marriage.

Atty. Nico Antonio