I would like to ask if there is any probability that I can change my surname into my father’s surname. I am now using my mother’s surname. When I was born they were not yet married, because my father had an ongoing petition from my grandparents in the USA. When I was two years old, Papa was diagnosed with cancer and decided to marry my mother.
The problem is, my mom’s surname in their marriage contract was misspelled as “Villacorta” instead of “Villanueva”. In my birth certificate though, my father was able to sign as my father. I am really hoping that you will help me with my inquiry. If ever there is a way to do this, may I know the procedure? Thank you.
Based on your letter, four facts may be established: First, you were born before your parents were married, and the only reason your parents were not yet married was because your father had an ongoing petition in the United States of America (USA). Second, your father was able to acknowledge you as his child in your birth certificate. Third, soon after, your parents eventually got married. Fourth, your mother’s surname was misspelled in the marriage contract.
We strongly advise that your mother should have her surname corrected in her marriage certificate, so there will be no question when you apply for the use of your father’s surname. Republic Act (R.A.) No. 9048 authorizes the city or municipal civil registrar to correct a clerical or typographical error in an entry without need of a judicial order. If it is evident in their marriage certificate that the misspelling was clearly a typographical or clerical error, then she can avail of this remedy. Otherwise, she must file a petition in court for the correction of her surname.
Since your parents had no legal impediment at the time of your birth and they subsequently got married, you are considered as a legitimated child. A legitimated child is similar to a legitimate child, except for the fact that you were born prior to your parents’ marriage. Article 177 of the Family Code defines legitimated children as those “conceived and born outside of wedlock of parents who, at the time of the conception of the former, were not disqualified by any impediment to marry each other…” Therefore, as far as the law is concerned, you were legitimated when your parents got married.
For you to enjoy all the benefits of a legitimated child, including the right to use the surname of your father, the fact of legitimation must be recorded in your certificate of live birth. In order to do this, you must submit the following requirements to the civil registrar where your birth was recorded:
(1) Certificate of Marriage of your parents;
(2) Your Certificate of Live Birth;
(3) Acknowledgment, but you do not need this, as you were acknowledged by your father in your birth certificate; and
(4) Affidavit of legitimation executed by both parents.
Once you submit all the requirements and the civil registrar sees that everything is in order, your original name appearing in your birth certificate shall not be erased or deleted.
Instead, an annotation in the remarks space stating “Legitimated by Subsequent Marriage” indicating the family name which you shall bear because of legitimation shall be written.
We hope that we were able to enlighten you on the matter. 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