My husband and I got married in 2003. In 2008, I decided to move out of our house together with our two daughters because he was physically abusing me when he is drunk. I stayed at my parents’ house in the province. After almost four years, I started a relationship and until now I am with my current boyfriend but he is also married. I am now pregnant with his child. Once I give birth, can our child use my boyfriend’s surname? Will I be able to use my Philhealth to avail of benefits for my delivery even if the real father of my child is my boyfriend? Insofar as my boyfriend is concerned, can he declare our child as his dependent?
Dear Sky Hue,
We regret to inform you that your child, once born, may not use the surname of your boyfriend. It is your own declaration that you are married and there is no showing that your marriage with your husband has been dissolved by our courts. Thus, your marriage is still considered valid, binding and existing.
Consequently, all children born during the subsistence of your marriage will be considered as you and your husband’s legitimate children. This is pursuant to Article 164 of the Family Code of the Philippines, to wit: “Children conceived or born during the marriage of the parents are legitimate. x x x”
Even if you assert that the child is not the child of your husband but that of your boyfriend, such claim will not be given credence. Article 167 of the Family Code of the Philippines provides that, “The child shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress.” Apart from the provision of the law, it has been ruled by the Supreme Court in Cabatania vs. Court of Appeals (G.R. No. 124814, October 21, 2004) which was reiterated in the case of Concepcion vs. Court of Appeals (G.R. No. 123450, August 31, 2005) that, “x x x The presumption of legitimacy does not flow out of a declaration in the statute but is based on the broad principles of natural justice and the supposed virtue of the mother. It is grounded on the policy to protect the innocent offspring from the odium of illegitimacy. x x x”
The only instance that the said child will be precluded from using the surname of your husband is when the latter has secured a favorable decision from the court impugning his filiation with the said child. With the absence of such decision, your third child remains entitled to use the surname of your husband, not of your boyfriend.
Insofar as your intention to use your Philhealth for your forthcoming delivery, we submit that you may be allowed to do so provided that your premium contributions for at least three (3) months have been paid within the six (6) months prior to the first day of your availment, which can show that you have contributed thereto with sufficient regularity, as evidenced in your health insurance ID card, and that you are not currently subject to legal penalties as provided for in Section 44 of Republic Act (R.A.) No. 7875, otherwise known as the “National Health Insurance Act of 1995” (Section 12, R.A. No. 7875).
Insofar as your boyfriend’s intention to declare your child, after the latter’s birth, as his dependent, we submit that this may not be legally feasible. As we have stated earlier, your child is considered as you and your husband’s legitimate child. Hence, there is no lawful relation that links him to the said child which could justify him to declare the latter as his dependent.
We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appre-ciation of the same. Our opinion may vary when other facts are changed or elaborated.