I got pregnant by another man while my husband was working in Kuwait. My husband forgave me and we would like to know whether my child could still use the surname of my husband and be treated as his own.
Article 164 of the Family Code of the Philippines states, “Children conceived or born during the marriage of the parents are legitimate.” Article 167 of the same code states, “The child shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress.”
In the case of Gerardo Concepcion v. Court of Appeals and Theresa Almonte (G.R. 123450, August 31, 2005; ponente, former Chief Justice Renato Corona), it was held that “a minor cannot be deprived of his/her legitimate status on the bare declaration of the mother and/or even much less, the supposed father. In fine, the law and only the law determines who are the legitimate or illegitimate children for one’s legitimacy or illegitimacy cannot ever be compromised.”
In your situation, since you are legally married to your husband at the time your child was conceived and born, despite the fact that he is actually a biological child of another, your child shall be considered as a legitimate child of your husband or lawful spouse. Moreover, since your husband forgave you and is not questioning the paternity of the child, the latter may therefore use the surname of your husband.
Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.
We hope that we were able to enlighten you on the matter.
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