Our company driver just got married. He and his wife have been cohabiting for almost a decade before they got married and they already have three children aged ten, six and three. It was just a simple ceremony but most of our co-workers attended because he is very dear to us. In one of our conversations, he expressed his concern regarding the surname of his children which is the surname of his wife. He wants, if possible, to have their surname changed to his surname. What should he do? Please advice.
Based on the facts that you have shared with us, it is expected that the surname of the children of your company driver followed that of their mother because, at the time of their respective births, their parents were not married. As a rule, illegitimate children shall use the surname and shall be under the parental authority of their mother, although they 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 (Section 1, Republic Act (R.A.) No. 9255 amending Article 176, Family Code of the Philippines).
Notwithstanding, your company driver and his wife may apply for the registration of the legitimation of their minor children because, as a rule, legitimation takes place by the subsequent valid marriage between parents (Section 1, R.A. No. 9858 amending Article 178, Family Code of the Philippines). Accordingly, their children, being legitimated children, shall enjoy the same rights as legitimate children and one of which is to bear the surnames of their father and mother (Article 179 in relation to Article 174, Family Code of the Philippines).
Nevertheless, it is essential for your company driver and his wife to prove that the following facts concur: Their children were conceived and born outside a valid marriage; At the time their children were conceived, he and his wife were not disqualified by any legal impediment to marry each other, or if they were so disqualified, it is only because either or both of them were below eighteen years of age at the time; and They subsequently entered into a valid marriage (Section 1, R.A. No. 9858 amending Article 177, Family Code of the Philippines).
In connection therewith, your company driver and his wife must execute an Affidavit of Legitimation stating: their names and place of residence; date and place of the solemnization of their marriage; name of the officer who officiated their marriage; names of the children concerned; date and place of their respective births; the fact that at the time the children were conceived, they had no impediment to marry each other, unless the impediment relates to their age; and that they entered into a valid marriage and that by virtue of the said marriage, they are legitimated. The abovementioned affidavit shall be registered at the Local Civil Registry Office (LCRO) where the said children were born, if their births occurred in the Philippines. If the births occurred outside the Philippines, the said affidavit must be registered at the City Civil Registrar (CCR) of Manila (Rule 4, Rule 5.4, Implementing Rules and Regulations of R.A. No. 9858).
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 appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to firstname.lastname@example.org